| Arbitrary medical behavior is a subordinate concept of medical behavior,which has its particularity because it violates the patient’s right to informed consent.The doctor-patient relationship in modern society places greater emphasis on equality between doctors and patients,and places greater emphasis on protecting individual free will.Due to violating the patient’s right to informed consent,arbitrary medical behavior faces legal accountability.There are similarities and differences in the theories and precedents of various countries regarding the criminal regulation of arbitrary medical behavior.Some are separately charged,while others are handled as civil infringement or administrative cases.The article proposes the possibility of criminal law regulation for arbitrary medical behavior,but it must be clarified that not all arbitrary medical behaviors should be included in the framework of criminal law regulation.Instead,it is necessary to explore the path of criminal law regulation within the scope of negligent crime based on specific cases and specific analysis.The full text mainly analyzes arbitrary medical behavior from four parts,and finally proposes the path for criminal law to regulate arbitrary medical behavior,attempting to protect the interests of both doctors and patients and promote fairness and justice.The first part further clarifies the connotation of arbitrary medical behavior by defining the concept of medical behavior,and explains the core element of the patient’s right to informed consent to clarify the characteristics of arbitrary medical behavior;The second part introduces three main theories in the academic community on whether arbitrary medical behavior should be punished,including the theory of full conviction,the theory of innocence,and the theory of partial conviction.It also states its views and analyzes the difficulties and obstacles faced by criminal law in regulating arbitrary medical behavior;The third part interprets from two aspects,namely the necessity and feasibility of criminal law regulation of arbitrary medical behavior,in order to prove the legitimacy of criminal law regulation of arbitrary medical behavior;Finally,the specific path for criminal law regulation of arbitrary medical behavior is proposed,indicating that arbitrary medical behavior should adhere to the principle of restraint in criminal law.According to the current situation in China,arbitrary medical behavior should not be separately criminalized,and can only have the possibility of establishing a negligent crime within the current criminal law framework.It is also pointed out that arbitrary medical behavior has the possibility of being legitimized. |
