A Study On Criminal Liability To Unauthorized Medical Treatment

The relationship between doctors and patients was leaded by the doctor—based patriarchalism in traditional medicine. As the human rights thought increasingly rising, it is recognized that patients have the self-determination about medical treatment in order to maintain dignity. Doctors violating explanation duty, neglecting patients’ agreement, breaching patients’ preference, all of these are the maifestation of unauthorized medical treatment. The infringement of the informed consent right will be subject to legal accusation, but differement countries and regions have different legislation about legal liability of unauthorized medical treatment, even within a country, judicial world and academic circles have contradictory viewpoints. The treatise about this problem in china is not aboundant, and only small part of unauthorized medical treatment cases would enter the civil judicial procedure. In most cases, this behavior belongs to civil tort, but when it causes serious social harmfulness, criminal regulation will be applicable. From the civil tort to criminal offence, how to determine the distinction? When the behavior constitutes a crime, how to convict the defendant? With disputes between doctor and patient become complex and increased, the extreme method to solve the conflict would be avoided only when judicial organ can deal with it properly. The article considers that, using the means of criminal law to regulate this behavior, and definiting the attitude of criminal law will promote the medical treatment and protect the legal rights of the right—possessors.There are seven parts in this article, including foreword, conculsion and five chapters of the body part. The foreword is an introduction to doctor—patient dispute in present society, and the academic backgroud. Chapter one:introduce the meaning of medical behavior, describe history and constitutive requirements of the Principle of Informed Consent, then educe the definition and classification of unauthorized medical treatment. Chapter two:introduce and analyse the judicial precedents and theories in Germany, Japan, USA, and Taiwan area. Chapter three: comparative analysis of doctrines about crime and non—crime, and study the feasibility in china. Chapter four: analyse the consitutive elements of crime, including precondition, behavioral nature and subjective form. Chapter five:study the distinction between civil tort and crime and what crime it could be. Ending:conclusion.