The Research On The Crime Of The Medical Accident

There exist many medical disputes in our country, which are more and more complicate, and lead to a tension between doctors and patients, becoming the hotspot of all the walks of the society. if the medical dispute can't be solved well,it will influence the building and developing of he relationship between doctors and patients, so that the legal rights of doctors and human rights of patients couldn't be protected effectively in the end .under this situation, it is important and urgent to do some research on the Crime of Medical Accident.This article is consisted of four parts except the guiding and conclusion.The first part is a summarization of the Crime of Medical Accident.first, the concept of the crime is the base and start point for studying it. Therefore, medical dispute and medical accident, medical malpractice cases and medical skill accident must be distinguished clearly.Second, an introduction about the difference between legislation model and legislation content and punishment at home and abroad of the Crime of Medical Accident.The second part is an analyze of the constitutive elements of the Crime of Medical Accident about objective aspect. Objective aspect: defining that medical practice including the precaution and medical hairdressing, expatiating the characteristic of medical practice ,the validity and practicing ,the meaning and cognizance as well as legislative suggestion of "being derelict of duty severely", suggesting to cancel "be derelict of duty severely" from the state of the Crime of Medical Accident and in stead it of "violate thecure bylaw and nurse regulation.The standard to cognizance "undermining one's health severely": criminal standard andmedical standard , two doctrinal standards. For the internal consistency and harmony of criminal law, the penman considers that the criminal standard should be adopted.Last part of the objective aspect is the casaulity.It's useful to study on the casaulity of the Crime of Medical Accident for bearing the responsibility correctly.One of the obvious character of casaulity is so confuse that difficult to judge. Mainly about its particular characteristics ,representing, and confiniton. The cause-in-fact of this medical consequence relationship shows the speciality mostly, although the causation in law of it has its own particularity. The medical consequence relationship represents in these six forms: one reason one conclusion, chain, a synchronism, and furtherance, compose. As for the confine of the medical consequence relationship, the penman insists in the correspondence theory of causal relationship.The third part, subjective aspect: the study on the subjective of the Crime of the Medical Accident is simple, first, the must-have characteristics of the subject of the Crime of Medical Accident, the medical personnel: corresponding medical knowledge and treat technique, enterprise qualification and certificate, the factors to determine the legality of the behavior of the medical personnel.practice. Second, as for two special subjects , the medical managers and logistics serve persons not working on the medical work that have high risk ,so they should not enjoy the privilege to have a lighter penalty than the common negligent crime.,the penman takes them as the subjects of the Crime of Medical Accident,and if the intern who under the guide of experience medical personnel practiced and was derelict of duty severely so that undermined patient's health severely or made patient died ,would be convicted the Crime of Medical Accident,otherwise the Crime of Illegal Medical PracticeFurthermore, avoidance of medical personnel matters the health and life right of patients ,then the relationship between doctors and patients shouldn't be ignored. Such a great amount of voluntary manslaughter in medical covered up by legal medical practice was due to the contradictions between the doctors and patients. So the penman advice that the avoidance of medical personnel should be put in law.The fourth part is study on the criminal liability of the Crime of Medical Accident. Firstly, how to cognizance civil liability, administrative liability, criminal liability of the Crime of Medical Accident The difference and relevancy of them is important for dealing with the Crime of Medical Accident. At the end of the article is research on the punishment of the Crime of Medical Accident. Owing to the subject of the Crime of Medical Accident have less subjective culpability of the mind, and more regretful, the punishment for this crime of the mind should be light rather than heavy which is accord with our nation 's situation. Besides,the penman also thinks that there are some problems in the kinds of the penalty. According to the Chinese criminal law the penalty for the Crime of Medical Accident,set term of imprisonment and penal servitude that fewer than our abundant penalties are not helpful for carrying out the principal of suiting punishment to crime. Consequently, the advice to consummate is put forward, such as attach importance to probation ,add penal fine, qualification penalty which helpful for conviction and sentence the offender, besides beat and rebuild them.