To Establish A Unified Medical Damages The Legal System

For damages of medical treatment, China's current judicial application shows dual differentiation for administrative rules and civil law, which lead the legal system does not to reunification. This paper attempt to analysis legal system of China's existing medical damages, which revealed the anomalies of the "duality" in law application by analysising different judicial cases, refining focus, concluding Civil law especially with the theories knowledge of Tort Law. At the same time , it explore the theories of medical damages such as using " medical action " as standards of medical damage, using full compensation or limit compensation as basical compensation principles according to different circumstances, reconstruction identification institutions of damage medical, which create a unified legal system of medical damages, then eliminate to the patient's disputes broadly in the level of legislation. Besides introduction and conclusion, this paper is divided into three parts:The first part reveals the practical difficulties caused by the "duality" of law application in the current medical damages, and expounds the theories relate with medical damages through listing the different judicial cases, and attaining the focus from these. In this part, introducing the concept and constitutive elements of medical damage highlighted, analysising the liability principles and responsibilities' nature, and redefining the concept of medical action, below which making the foundation on the following theory.The second part reflects the legal system of China's current medical damages, and point out the essence of "duality" is Administrative law intervents Civil compensation, and analysises many problems that causes by the "duality", such as the legal confliction, the confusion of concept, the practical predicament, and so on. Also reveals the defects of identification model's "duality" caused by "duality" in lawful application. Thereby it establishes a neutral and impartial identification system of medical damage and reasonable standards of damages. The third part establishes a unified proposition of the medical damages' legal system, including the clearly concept, the principle of damages's choice application and reconstruction of some related rules. In this unified system, medical malpractice will be brought to medical damages areas, compensation of medical damages will come back to the nature of civil compensation, defining the basic principles of determining compensation is that the full compensation is mainly, limit compensation is supplement, and improves the standards of identification and compensation.Medical damages as a part of civil compensation, it has long been the double guiding by the administrative rules and civil law, and in the cases that have not been formed a unity principle in application, which runs counter to the trend of the unity legal system. The author hopes to build a unified legal system of medical damages, which in order to eliminate the "duality" in the law application by discussing the above three-part.