Research On The Causality Of Crime Of Medical Accident

Due to the high technical and professional nature of medical activities,it is always difficult to determine whether there is a causal relationship between medical negligence and the consequences of damage in the crime of medical accidents.The existence of a causal relationship in criminal law between the act of negligent harm and the result of harm is the prerequisite for the criminal liability of the perpetrator.The importance of the determination of causality in the investigation of criminal liability for medical accidents is evident.Judgment of causality has always been the focus and difficulty in the crime of medical accidents.Therefore,the author believes that it is necessary to discuss the judgment of causality in medical accidents crimes,and hopes that it can help to determine the medical accidents in judicial practice.The first chapter mainly conducts an empirical analysis of medical malpractice crimes in China for a total of ten years from 2009 to 2019.Medical malpractice has been a low-accusation since it was convicted in 1997,and the case rate is only about 3%.But in recent years,the incidence of this crime has been showing a continuous and slow growth trend.After statistically judging the causal relationship reasonably,it is found that there are two problems in the causal relationship judgment mode in the medical accident crime for several years.The first is that it does not distinguish between factual causality and legal causality.It will be mixed with each other.This simple The cause and effect judgment of unity is the cause and effect judgment in the crime of medical malpractice,which is overridden by the fact judgment,and loses its own meaning.The second is to ignore the characteristics of the causality of the crime of medical malpractice.Ignoring its complexity,uncertainty and professionalism can lead to different results.In Chapter Two,In order to solve the problem of determining causality in the medical accident crime mentioned in the last chapter,the author wants to establish a complete judgment model of causality in the medical accident crime.First of all,"conditional theory" in the traditional theory of causality judgment expands the scope of causation,and the equivalence of "quite causal theory" cannot be achieved in the crime of medical accidents.Secondly,regardless of the “conditional theory” or the “quite causal theory”,they are all unitary judgments which is cannot assume the judgment function of attributing the behavior.Therefore,according to the characteristics of medical negligence behavior,a dual causal judgment model should be adopted in the crime of medical accidents,that is,"attribution to imputation" is the essence of the causal judgment model of medical accidents.Among them,at the stage of attribution of facts,the conditional theory based on legal principles based on the existing level of human knowledge is more conducive to judging the factual cause and effect in the crime of medical accidents.At the stage of attribution of results,the theory of objective attribution is adopted to judge harmful behavior of medical negligence.First of all,it is judged whether it correctly creates risks that are not allowed by law.Among them,reducing risks or non-existence risk is excluded.Second,it is judged whether it has achieved the risk that are not permitted by law.The way is assuming that perpetrator meets the obligation of attention whether the behavior can be avoided,that is judging a lawful substitution behavior.In the investigation of lawful substitution behavior,the author denied the "risk-raising theory" of Professor Roxin.It is advocated to use the result avoidance possibility as a method to judge whether there is a correlation between the risk of wrongdoing and the result.That is,if the behavior that complies with the duty of care is taken,the death result can only be attributed to the perpetrator if it is "determined" and "almost certain" will not occur.Finally,it is judged whether the hazardous result is within the scope of the constitutive requirements.Causality judgment based on objective attribution improves the problems of vague judgments and cyclical arguments in traditional theories.Chapter 3,based on the causal judgment model of the medical accident crime proposed in the chapter 2,points out that with the development of medical technology,there may appear some cases in which causality cannot be explained scientifically in medical accidents.After exhausting the above-mentioned causality judgment model and still unable to reach a reasonable conclusion,in order to cope with the damage of an unspecified number of people in this medical field that may occur in the future,this article attempts to introduce the theory of presumption of causality into China's medical accident crimes.In this way,the problem of proof of causality in the difficult medical accident crime can be solved fairly and justly,and the high efficiency of criminal proceedings can be achieved.That is,if it can be proved that there is a high degree of conclusiveness between the behavior and the harmful results,which is in line with the statistical law,it can be concluded that there is a causal relationship in criminal law between them,even if the conclusion cannot be proved from the perspective of physiology and pharmacology.However,the application of the presumptive theory requires strict restrictions.It must have enough statistical samples,exhaust all scientific and technological means,and the cause-effect relationship cannot be identified.The most important thing is to allow medical personnel and medical institutions to submit counter-evidence to overturn previous reasoning.This chapter is a special,supplementary to the exception in Chapter Two,so far the causality judgment of the medical accident crime has a complete model and standard.