The Identification Of Medical Negligence In Criminal Law

The medical negligence in criminal law may constitute different charges.Such as the crime of medical accident,the crime of illegal medical practice,the crime of negligent death and so on.According to different factors such as the identity of the subject,the place of practice and the repetition of the behavior.The crime of medical accident is the most representative one.Because it not only meets the standard of identity crime,but also belongs to the crime of negligence.In addition,its scope is broader than that of specific medical conduct offenses.Therefore,the study of the criminal responsibility of medical negligence in the criminal law of our country mainly starts from the crime of medical malpractice and extends from the point and surface.Medical negligence involves the application of several frontier theories in the field of negligent crime.The neo-theory of negligence is convenient to protect the medical personnel,and the theory of joint behavior provides the possibility for the joint negligence crime.Since the crime of medical accident was set up in the criminal law in1997,few cases have been convicted on this charge in China’s judicial practice.The sentence has also tended to be lighter.In general,the case may not enter the criminal judicial procedure or the judge applies wrong charges.According to the analysis of judgment,we can mainly summarize the problems in determining the commission of medical negligence acrime in China.Such as the qualitative uncertainty of medical negligence in the criminal law and the unclear boundary of conviction.Because of the limitations of the current mainstream theories and provisions of criminal law in China,the competing negligence and contributory negligence in medical malpractice cases cannot be reflected reasonably in criminal law of china.The excessively detailed charge setting makes the identification of medical negligence in the criminal law of our country miss by a mile,which tests the judicial workers in maintaining the consistency of the judgment.Compared with our country,the way to identify the charge of the extraterritorial comprehensive medical negligence is more concise,and legally-prescribed punishment is more abundant,which can better reflect the crime adapts principle.The basic principles of criminal law should be carried out by adding the provisions of unit crime of medical negligence and enriching legally-prescribed punishment,so as to ensure that the guilty should be punished and the punishment should be regarded as the crime.