| According to the Article 335 of the Criminal Law of the People's Republic of China,"A medical person who,due to serious negligence of his duty,causes death or serious damage to the person who goes to see him shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention." It serves as the bases for punishing crime of medical accident.Although the research on the crime of medical accident has never stopped making progress,there are different opinions as to how to define its composition,verification and arrangement of the statutory punishment.With the hope that it would helpful to the judicial practice of rhe crime of medical accident in China,the author looks up the interrelated data of past three years and studies the above three controversial issues under his tutor's guidance.The thesis consists of three parts:Introduction:It gives a brief review of the study on the crime of medical accident and an analysis of problems existed in its research.Based on this, main problems worth studying are also suggested.The main body of this thesis is composed of four chapters:Chapter One:Analysis of the elements of crime of medical accident.This thesis attempts to make a through research into the criminal of medical malpractice by a careful study of the four key elements of criminal action.Firstly,based on the analysis of the object,the thesis holds that the object of the crime of medical accident is complex,including the right of life and the fight of health and government's administrative order of medical treatment in Criminal Law,and opposes the contention of concluding what worth major or minor protecting on the basis of major or minor object. Secondly,as to the objective aspect of the crime of medical accident,the thesis analyses the connotation of "being irresponsible severely" and "seriously damage to patients' health",and holds that as long as the medical person violates medical regulations and consulting and nursing routine,resulting statutory harmful consequences,thus crime of medical accident is constituted,without thinking about whether the degree of irresponsibility is serious or not.With regard to "seriously damage to patients", the criteria and measure remain controversial for lacking in unified standards at present.The thesis suggests that grievous bodily harm evaluation standard is so operational that should be adopted.Thirdly,in the study of subject of the crime,the author claims that administrators,logistics staffs,intern students and apprentices can also constitute the crime on condition that they are responsible for ensuring the life and health of patients,besides the medical persons who are directly engaged in consulting and nursing.Fourthly,it is difficulty to judge whether medical persons are intentional or negligent,but once indirect intention is finding,they are not to be punished as crime of medical accident.As to duty of care,there are three theories among criminal jurists,including foresee duty,result-evade duty and compromising theory. The author is for compromising theory,meanwhile elaborating the Connotation of foresee duty and result-evade duty theory.As to attention ability,the author develops the idea that the way judging whether the medical person has attention ability or not is measured by equivalent person or mean level,i.e.the common sense and general reason of medical persons on the basis of analyzing objective theory,subjective theory and compromising theory.Chapter Two:The judgment in crime of medical accident.Firstly,expert conclusions are usually difficulty to define and exert.The paper holds that the expert conclusion made by accrediting body is only the evidence of crime of medical accident but not its prepositional procedure,and it can't exclude other proofs.The adoption of expert conclusion is relied on judicial authority,but not Chinese Medical Association,needless to say local medical association.People's Courts have the decision-making power of adopting which expert conclusion.Secondly,how to recognize the "cause-and-effect" relationship between medical misconduct and dangerous consequences is another problem in judicial practice.To solve it,the author divides the condition theory of causality into four rules and expounds them with definite cases one by one.As to the rule no.3 and no.4,the common sense and general reason of medical persons should also be concerned.What's more,it only shows that between medical misconduct and dangerous consequences there is causality,but not indicating that act constitutes the crime of medical accident.Thirdly,the differences between the crime of medical accident and non-crime.With specific cases,the author elaborates on this topic comparing the crime with medical incidents,complicating disease and sudden death.Fourthly,the differences between the crime of medical accident and other crimes.With specific cases,the author elaborates on this topic comparing the crime with the crime of illegal medical practices,the crime of death caused by overdone,the crime of serious injury caused by overdone,the crime of intentional homicide and the crime of willful and malicious injury.In the comparison to intentional killing crime,the author suggests that the behavior of refusing consultation of irresponsible medical persons constitutes the crime that can be added in Criminal law of China by reference to the legislation in Macao region.Chapter Three:Arrangement of the statutory punishment.The author summarizes the criticization of arrangement of the statutory punishment to two aspects including that the scale of the penalty is too small and the kind of the penalty is too simplex on the first place;then on the basis of for-theory and against-theory,the author claims that the punishment does not severe,and suggests two scales of the penalty:fixed-term imprisonment of not more than three years or criminal detention;fixed-term imprisonment above 3 years and below 7 years.Finally,the thesis holds that executing fine punishment is reasonable but adding disqualification punishment is unnecessary.Conclusion:Summarize the whole paper. |
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