Research On The Problem Of Negligence Determination In The Crime Of Medical Malpractice

Medical treatment is an important guarantee for safeguarding citizens' life and health.Medical malpractice will cause the lack of trust between the doctor and the medical staff,resulting in the tense relationship between doctors and patients,but medical malpractice is not equal to the crime of medical malpractice.There are many reasons for medical malpractice,but only when the behavior of medical personnel meets the constituent elements of the crime of medical malpractice in criminal law,it can be recognized as the crime of medical malpractice.The crime of medical malpractice has always been a crime with low application rate in China's judicial practice.The reason is directly related to many difficulties in the determination of medical negligence.Therefore,it is of special significance to carry out a special discussion on the determination of negligence of the crime of medical malpractice.In addition to the "Introduction" and "conclusion",the paper is mainly composed of five parts.The main contents of each part and the author's views are summarized as follows.The first part is the discussion of negligence in the crime of medical malpractice.The crime of medical malpractice is a negligent crime.There are mainly disputes about the theory of negligence in the field of criminal law,such as the old theory of negligence,the revised old theory of negligence,the new theory of negligence and the new neotheory of negligence.This paper analyzes various fault theories and holds that the new fault theory is more scientific and reasonable,while other fault theories have various deficiencies and defects.The article holds that the new theory of negligence should be adopted in the identification of the crime of medical malpractice.The second part discusses the duty of care of the crime of medical malpractice.The article holds that the duty of care in the crime of medical malpractice includes the duty of anticipating the result and the duty of avoiding the result.Its substantive content is the duty that medical personnel should perform in the process of medical activities.The duty of foreseeing the result in the crime of medical malpractice requires medical staff to foresee the possible infringement of legal interests.The duty of avoiding consequences in the crime of medical malpractice requires medical staff to take necessary measures to prevent the occurrence of harmful results.The third part is the thinking of the judgment of the possibility of foresight in the crime of medical malpractice.The possibility of foreseeing is the establishment condition of negligent crime,and its object includes not only the result itself,but also the causal relationship between behavior and result.The possibility of foreseeing in the crime of medical malpractice refers to the realization of the infringement of legal interests in which medical personnel can foresee that their behavior may lead to the death or serious damage to their health.The article holds that the judgment of the possibility of foresight should adhere to the "compromise theory",and should be objectively recognized according to the requirements of specific social life fields and different industries.The fourth part discusses the limitation of the crime of medical malpractice.The article believes that with the rapid development of the medical field,the risk problem in medical activities has become more and more complex.The expansion of medical risk can not be fully borne by medical personnel.The rational distribution of risks in the medical field and the standardization and limitation of the actor's duty of care are the theoretical premise for the correct application of the crime of medical malpractice.The limitation of medical staff's duty of care can be realized through two ways: the principle of permitted danger and the principle of trust.The fifth part is the deconstruction of the doctrine of "serious irresponsibility".The article holds that the content of "serious irresponsibility" stipulated in the legislation in the establishment elements of the crime of medical malpractice is the violation of the duty of care by medical personnel.The "serious irresponsibility" must be deconstructed strictly and carefully according to relevant laws and regulations.The evaluation of "serious irresponsibility" must be based on the premise that medical personnel have the possibility of prediction.We should not only fully consider the particularity of medical activities,but also carefully analyze a variety of unpredictable risks in medical activities.