| In recent years,with the progressive development of the rule of law strategy,our legal norm system has been improving,and citizens’ legal consciousness has also been gradually strengthened.Correspondingly,the human rights protection function in the basic function of criminal law has been paid more and more attention.Modern countries always use criminal law to intervene and punish behaviors that cause harm to human body,but the behaviors that cause harm to human body are not necessarily illegal,and medical behavior is one of them.In emergency medical treatment,patients are often unable to make a realistic commitment.For the purpose of maximizing the protection of patients’ life and right to health,although doctors’ rescue behavior in this case has legal infringement,the theory of constructive commitment can be applied to prevent the illegality.However,not all medical behaviors can be prevented from illegality based on constructive commitment,and constructive commitment may be invalid due to lack of establishment requirements.The relationship between patients’ constructive commitment and the legitimacy of medical behavior is complicated,so it is necessary to study it further.At present,there are only two kinds of legitimate causes in the current criminal law.The theoretical research of constructive commitment is not enough in our country,and it is needed to answer a series of medical behavior problems in practice.If the presumption commitment theory is abused in medical criminal law,it will inevitably lead to the expansion of the damage to the legal interests of patients and the improper accountability of doctors,aggravate the contradictions between doctors and patients,destroy social fairness and justice,and not conducive to the construction of a harmonious society of mutual help.Therefore,we should establish the regulation of constructive commitment in medical criminal law as soon as possible and put it into practice,so that more doctor-patient disputes can be settled by law and more medical cases can be settled clearly and reasonably.This paper will introduce the necessity of the application of the theory of constructive commitment in medical criminal law,and the current situation of insufficient relevant research in China.Combined with the theory of constructive commitment,this paper will clarify the definition of medical criminal law and constructive commitment,the justification basis of constructive commitment and the establishment requirements of constructive commitment by quoting various theories and opinions of relevant scholars at home and abroad.To provide theoretical support for the following point of view.Next,the application of constructive commitment in medical criminal law is introduced,which is elaborated in three aspects: doctor’s informing duty,passive euthanasia and arbitrary medical behavior.Finally,combining with the current theoretical and practical situation,this paper puts forward some suggestions on the regulation of constructive commitment theory in medical criminal law.We should pay attention to the limitation of legal benefit and social equivalence in the particularity of the establishment requirements of constructive commitment,make clear the discrimination between it and related concepts,take the respect of patients’ independent decision as the legal basis,and adhere to the judgment principle of specific cases.In conclusion,based on the theoretical study of constructive commitment and the current application of patients’ constructive commitment in domestic medical criminal law,this paper hopes to put forward some suggestions on criminal law regulation of constructive commitment in medical criminal law,which can promote the development of the system of constructive commitment in medical criminal law. |
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