The Research Of Infringement Of Patients' Privacy Right In Application Of Law Provided By Tort Law Therein Article 62

In the <Tort Law of the People's Republic of China>,Article II clearly defines that privacy right is an independent human right.In Article 62 of the same law,it also stipulates separately that a medical institution and its medical staff who has divulged any privacy data of a patient shall assume the tort liability.These two articles have highlighted the importance and urgency of protecting patients' privacy right in the current medical situation.But the Article 62 has not change the situation as expected,disputes of patients' privacy right continue to be in judicial practice.For example,there is a great deal of controversy over the issue whether the action of treating the patient as teaching aid is a kind of infringement acts.Combining with judicial practice,this essay will clarify those theoretical issues related to patients' privacy right,so that patients can seek a better legal way to protect own privacy.According to several typical cases searched,the first chapter analyzes and raises several problems in application of law.The first one is the exact definition of patients' privacy right,to be more specified,it means how to define patients' privacy right.The second one is how to judge the special situations in medical practice.The third one is how to identify damage and how to determine the sum of compensation.In Chapter II the author describes the basic theories about the basic concept,protection range etc.of patients' privacy right.Speaking specifically,patients' privacy right is a kind of spiritual personal right which can be controlled by the patients in clinical activities.The protection range of patients' privacy right is patients' privacy secret,including the privacy information in private activity and private sphere.Its feature lies in the special subject,the special object,the length of protection.Why does the law make seemingly repetitive regulations? In the author's opinion,the inside reason to this question lies in its characteristic of vulnerability and complexity in identification,and the intrinsic relevance between the protection of patients' privacy and the development of medical industry.That's why the law has set out a separate article to protect it.In Chapter III the author discusses the practical sample of the infringement act.Although Article 62 has provided the behavior of the tort of patients' privacy,it does not cover all.Besides the act of divulging privacy data of a patient,the act of obtaining patients' privacy beyond doctors' authority should be included.There is a need to point that the exercising of patients' privacy right is not absolute.There is also some discussion on the conflict between privacy right and other rights,such as right to know by the doctor and legitimate rights and interests of others.As the tort of privacy is various in the medical field,this essay gives specific analysis on the following circumstances: students' observation in clinical teaching,the use of patients' privacy in scientific research,the problem whether the employer can know patients' privacy,the problem whether the specified third party can know patients' privacy.The last chapter analyzes some problems occurring in the process of applying the tort law.First,which kind of principle should the medical staff bear the liability,the principle of liability for fault or the principle of presumption of fault? In the author's opinion,the medical institution shall bear liability for tort with fault liability principle.To assume a tort liability of patients' privacy,the four elements of general tort liability should be taken into consideration,fault,behavior,damage and causality.In judicial practice,there are two difficult problems: how to identify mental damage and how to determine the sum of compensation.Compensation for losses is mainly for the mental damage,and for the identification of mental damage and the sum of compensation,on account of the general theory of mental damage compensation,the author has her own opinions and suggestions.