Research On Objective Imputation Of Medical Negligence Crime

The legislation blank of medical negligence is filled by the establishment of medical negligence crime in China's current criminal law. From 1997 to the present, the article aims to use criminal law provisions to prohibit serious medical negligence and seek national well-being, facing the problem of imputation of medical negligence crime in practice though. A large number of medical negligence cases' judgment is short of the criminal legal argument for facts, which is difficult to achieve prevention and guidance.The traditional negligence crime theory pays more attention to the obligation investigation. From the perspective of the old negligence theory of violation results to foresee obligations, the new negligence theory of violation results to avoid obligations, or China's negligence form advocating negligence and overconfidence,because of obligation norm violation's fuzzy standard, hybrid of subjective and objective elements of causality affirmation, circular argument and other issues, medical negligence cannot be identified in a classification way, resulting in unlimited expansion of the scope of obligation risks.The progress of the medical field requires the upgraded criminal law interpretation theory. In terms of the affirmation of medical negligence crime, we need to make continuous exploration on the domestic academic theory and judicial practice, and refer to foreign academic theory and judicial practice. Objective imputation theory takes creation and achievement of objective risks as the core, and builds the connotations of negligence crime from the creation of illegal risks, achievement of illegal risks and constitution of effectiveness categories. At the same time, in the field of causality, the objective imputation is divided in to the fact imputation and the legal imputation,and a relatively stable causality standard is established to enrich crime theory system in our country.This paper was divided into four parts. The first part conducted a deep consideration and sublation of old negligence theory, new negligence theory and the negligence regulated by China's criminal law. The second part, based on the theory of dual invaluable act, briefly introduced the detailed connotation of objective responsibility theory, remodeling the connotation of negligence on the foundation of system construction and function positioning. The value of objective responsibility-theory,introduced by China,would be discussed. Secondly, the traditional negligence theory confuses the facts, cause and effect as well as the legal responsibilities, which leads to the mixing of subjective and objective elements. The four-element criminal theory system of planar coupling causes the lack of connotation of negligence. The objective imputation theory targets at these two problems,and is necessary in distinguishing between attribution and ascription, which is capable of correcting the standards for affirming the casual relationship and of breaking the limitations on the identification of negligence cases. At last, as for introducing objective responsibility theory into China's criminal law, this paper made a feasibility demonstration from two aspects: the consistency of mode of confirmation for cause and effect process"behavior-result"; the essential property of protection of law benefit for the concept of constitutive elements of crime. The third part, combining with cases of medical negligence,discussed that the target of obligation of act was the risk which was not allowed by medical standard. The criteria of liability included decreasing patient's medical risk and medical alternative behavior of performing duties. The forth part, combining domestic and foreign cases and judgment requirement, conducted result imputation of medical negligence,analyzing how the result of medical risk could be achieved in scope of protection of constitutive requirements and discussing how to achieve refinement of crime affirmation by localized objective responsibility theory in negligence cases, from the following aspects:the deviation of medical cause and effect, purpose of medical regulation protection;increase of risk, self-responding to prosecution, the risk for self-protecting by physicians,risk for physician-in-charge out of his duty and etc..