Analysis Of The Legitimacy Of Treatment Behavior Under The Perspective Of Victim's Consent Theory

In judicial practice,medical disputes are very common.There are few cases where medical acts that are treated without the patient's consent are punished in practice.Most of the cases are determined by civil torts.This topic is selected to clarify the just cause of treatment behavior from the perspective of criminal law.And the legal responsibility of doctors in various situations where treatment behavior is performed without the consent of the patient,thus providing some reference for practiceMany people think that the treatment behavior belongs only to the civil category.The patient and the hospital signed a civil treatment contract.The two parties in accordance with the contract of the act,should be regulated by civil regulations.But generally,although the patient and the hospital signing the treatment contract is a civil action agreed upon by both parties,if the breach occurs,it is first clear whether there is a civil dispute resolution method involving compensation.But after the patient and the hospital sign the contract,the treatment result is ignored and the doctor only acts on the patient in terms of the body's treatment behavior itself.The treatment behavior has the nature of harm.And some treatment behaviors pose a threat to the patient's physical integrity and life,and touch the scope of the criminal law norms.Therefore,medical staff and patients must bear a series of criminal risk.So,this paper explores the criminal problem of therapeutic behavior has realistic theoretical significance.Based on the above characteristics of the treatment behavior and the public's deep-rooted legitimate business understanding of the treatment behavior,the article mainly uses the intersection of civil and criminal views to discuss,from the perspective of the victim's consent to solve the problem of the legitimacy of various situations in the treatment behavior.From the perspective of its objective attributes,the treatment behavior is an injury behavior with invasive attributes.At present,there are many academic views on the legitimate causes of treatment behaviors,such as the theory of legitimate business,the theory of emergency risk avoidance,the theory of superior interests,the theory of treatment purpose,the theory of social equivalence,the theory of comprehensiveness,and the consent of the victim.After reaching agreement with the hospital,the patient agrees to hand over his physical integrity and life benefits to the doctor.Therefore,the most fundamental and valid basis for the treatment behavior to violate the law should be the victim's consent.The legitimacy of the victim's consent lies in the person's right of independent choice.The victim has the right to independently control the legal interests of the individual without affecting the rights and interests of others,including giving up his legal interests to others for disposal.The doctrine has strong adaptability in the medical field.The objective injury attribute of the treatment behavior puts the patient in the position of the victim.Only the treatment behavior that is approved by the patient and conforms to the public order and good customs and social ethics is the legitimate behavior to block the law,and the medical personnel do not have to bear criminal responsibility.Some scholars in Germany,Japan and Taiwan in our country believe that the consent of the victim constitutes an essential element.The victim promises to deny the act and separates the victim's consent from the victim's commitment,and uses different victim theories in different crimes.In fact,the victim's consent is not different from the victim's commitment in terms of system and in the way it is made.The two are two concepts of one concept.But they are illegal at the illegal level.Although the words "consent" and "commitment" are slightly different in terms of meaning,both of them mean the transfer of some of my own interests.From the perspective of the victim,the transfer of the victim means that the victim himself A legal interest freely disbursed is transferred to the perpetrator,agreeing that the person infringes his legal interest.Therefore,the victim's consent with the victim's commitment that the two claims are not contradictory because of the same purpose.The victim's consent is expressed that the patient's informed consent in the medical field.Informed consent consists of two levels:"informed" and "consent"."Informed" is to let patients understand the meaning and risk of the harm behavior they will choose to accept or not,so as to "consent" to control their legal interests without conscious flaws.At a deeper level,informed consent is a manifestation of respect for the patient's discretion.The doctor fully explains the treatment method,treatment risk and treatment result of the treatment behavior taken,and the patient chooses whether to treat and what treatment to receive,etc.,to reflect Patient-oriented thinking.There are three situations in which arbitrary medical behaviors that can obtain patient consent but perform treatment without consent are complete absence of patient consent,presumptive consent in an emergency,and hypothetical consent of obtaining substantial consent of the patient.In the cases without the consent of the patient at all,there is no justification for the doctor's arbitrary medical behavior,and the doctor's behavior is criminally illegal.In particular,when the patient's consciousness is unclear and there is an emergency,the doctor or close relatives can make a presumption and consent based on the patient's personal needs,psychology,and interests.There are also many debates about the legitimacy of presumptive consent,such as the theory of superior interests,the theory of risk permission,the theory of emergency hedging,the theory of causeless management,and the theory of legal drafting.In essence,presumptive consent is the result of benefit measurement from the perspective of the patient in an emergency,and this kind of consent is an act recognized by law.Therefore,the theory of legal drafting is more persuasive based on legal formulation force.Because presumptive consent is an infinite proximity to the will of the patient,in order to achieve the ideal state that fully conforms to the will of the patient,but the subject making the presumptive consent is not the patient himself,so in an emergency situation where the patient is not conscious,the presumptive consent and the patient's own will have to be accepted reasonable gap.Because the law presupposes that the subject agrees that the close relatives take precedence over the doctor,the doctor's decision should be refused when the close relative's decision is clearly inconsistent with the patient's will and exceeds a reasonable gap.When the patient assumes consent,if it turns out that even if the doctor fully fulfilled the obligation of explanation,the patient will not agree to the doctor's treatment,the doctor should bear the corresponding criminal responsibility.There is no direct cause-and-effect relationship,so it is believed that the patient has a firm will to treat,so the doctor should not bear criminal responsibility.Although the victim's consent doctrine provides legitimacy for treatment,in some special treatments such as euthanasia and compulsory medical treatment,the victim's consent doctrine is restricted.Reinforcement and the restriction of criminal law paternalism to protect the interests of patients.Patient's right of informed consent is the appearance of the patient's exercise of the right of self-determination.From a practical point of view,doctors still have the influence of doctor patriarchy.Medical business regulations and moral emotions drive them to choose treatments for patients autonomously.It is easy to ignore the needs and interests of patients themselves,but doctors may be caught with patients because of impulse There is a risk of disputes,so balancing the initiative of medical personnel and the will of patients is an important aspect of stabilizing the relationship between doctors and patients.From the perspective of the general public,doctors have professional medical knowledge and ethical requirements that patients do not understand.So patients can only passively choose to give themselves to the doctor for "disposal".And they have no idea about the treatment behavior and risks that the doctor intends to take.At the same time,because the patient does not understand the professional knowledge,the doctor also neglects to perform the obligation of explanation.This practice is very common in the real world.The public does not think that the doctor's practice violates the legal benefits,but it is generally recognized that it does not affect the nature of the treatment behavior and its justification.This paper hopes to make great efforts to the medical criminal law through the demonstration of this aspect.