| The crime of medical malpractice belongs to the crime of negligence.Therefore,it is necessary to combine the theory of negligence to understand whether the crime of medical malpractice conforms to the constituent elements of the crime of medical malpractice,so as to better determine the duty of care of medical personnel.The present negligence theory includes the old negligence theory,the new negligence theory and the new negligence theory.The old negligence theory emphasized to judge whether the doer had violated the obligation of foresight of the result subjectively and believed that the determination of negligence had nothing to do with the determination of the performing act.The new negligence theory emphasizes that the duty of care of the doer includes the duty of avoidance of the result and the duty of foresight of the result and includes the identification of the practice of the crime of medical malpractice into the process of identification of the negligence.The new-new negligence theory holds that when the doer violates the duty of outcome avoidance and the duty of outcome foresight in the abstract sense,it will be established as negligence,which leads to the infinite expansion of the scope of negligence.Medical accident crime in our country at present the problems existing in the fault standards are as follows: in the aspect of theory,the mainstream view in our criminal law should adopt the new negligence theory to determine the duty of care of medical personnel,will be considered objective fault,and through the objective way to determine whether a medical staff have the ability to pay attention to and shortcomings of mechanical stiffness;At the legislative level,the scope of "serious irresponsibility of medical personnel" stipulated in Article 335 of the Criminal Law is vague and difficult to apply,and there is also a lack of relevant legal interpretation.In judicial practice,the judicial organs in the criminal cases of medical malpractice lack of judgment on subjective negligence liability,inclined to adopt the medical damage tort liability negligence identification standard.Different from the criminal law of our country which stipulates the crime of medical malpractice separately,the civil law system and common law system countries do not stipulate the crime of medical malpractice separately in the legislation,but regulated by other provisions of criminal law.The German and British courts follow the process from objective to subjective fault identification when determining medical negligence crimes.First,they judge whether the doer’s diagnosis and treatment behavior violates the objective duty of care from the objective illegal level,that is,whether the doer has carried out the practice.Then it will judge whether the doer has violated the subjective duty of care,that is,the duty of foreknowledge of the outcome,at the level of subjective responsibility.This enlightenment we should distinguish the identification of fault and fault identification of fault.Extraterritorial related theory based on experience,coupled with domain scholars inside and outside the abundant study of medical accident crime negligence cognizance system,aiming at these problems,should perfect path: select the following in the theoretical level,using the theory of old negligence judge whether the medical personnel in subjective to fulfill its obligations,the results predicted using subjective speaking accurately determining medical personnel’s attention ability,clear medical standard rules and objective criteria such as only as the basis of whether medical staff implement a behavior;At the legislative level,legislators can improve the criminal provisions of the crime of medical malpractice through legislative amendments,and make clear that "serious irresponsibility" includes subjective and objective elements through relevant legal interpretations,and determine the content and identification standards of medical personnel’s duty of care.In judicial practice,the judicial organ should determine whether the doer violates the law according to the objective standard,and then determine whether the doer needs to bear the liability for negligence according to the subjective standard,and should reasonably distinguish between civil negligence and criminal negligence. |
