【作者】 陶翔；

【导师】 吕彦；

【作者基本信息】 四川大学 ， 法律， 2007， 硕士

【摘要】 医疗不作为侵权，是指在医疗行为中以不作为方式实施的侵权行为。该行为以医疗关系为基础，因其特殊性而为侵权法所调整。本文主要阐述了医疗关系的成立及其法律性质：继而阐明医疗不作为侵权法理上的界定和相关概念析辨，揭示该侵权行为外在表现形式；第四部分较为详细地论述了医疗不作为侵权的构成要件及举证责任；第五部分是对侵权责任合理分派的论述；最后部分则是从立法上思考减小该侵权损害面的建设性看法。对于医疗关系，文中概念非常人所理解之简单的医师与患者在个体上的接触，而是在法律上包含了契约关系和某种程度的非契约关系。正是这一复杂情况致使从法理上理解医疗不作为侵权应从多方面入手。首先在行为主体上，该侵权行为的实施者和责任承担者或分或合，在具体侵权中应仔细区分而不能笼而统之。其次，不作为侵权先决条件的义务如何确定?鉴于医师职业的特殊性以及医疗机构性质的特殊性，医师义务来源有职业所要求的告知说明义务，不中断治疗义务，组织的公益性对医师行为的约束力等。第三，义务来源的不同导致该侵权在行为方式上也体现出主观推脱的不作为、技能缺陷的不作为和责任心不强的不作为等多种。上述三方面在法理上界定医疗不作为侵权能够得到初步概念，进一步准确、深刻地理解还有必要与其他相关概念作比较区分，因此本文单列一章医疗不作为侵权要义析辨以为旁证。完整的理解医疗不作为侵权，必须从该侵权的构成要件上加以研究。参照我国法律，医疗不作为侵权属于一般侵权行为，其在构成要件上应当具备加害行为、损害事实、因果关系、主观过错四个要素。就加害行为来讲，因于该侵权行为的特殊性以及在现实中的可能性，从单独的不作为和共同的不作为两个角度来考察是必要的，也有助于侵权致损需担责之际合理解决问题以显法律公正。损害事实一节，从因治疗致使病情加重所生的损害和因治疗而致他种病症所生的损害两个侧面来区别对待，不作为侵权的特殊性也在此得以从事实损害上表现出来。侵权行为中因果关系的判断较为困难，文章试从条件性、相当性和复杂性三个方面来作论述。医疗不作为侵权中因果关系的条件性表现在行为与损害后果之间是否具有必然性联系。如果医师的行为并不必然导致损害产生，或者只是产生损害的一个微弱因素，那么条件性的意义就体现出来了。相当性与条件性密切相关，该侵权中因果关系的相当性，提醒我们追究医师责任应该有限度，可说是对医师正当医疗行为的一种肯定和保护。因果关系的复杂性在该侵权中体现在时空因素、患者自身因素、医师个体因素等多种不确定环境下的考量，对这种复杂性的分辨较多趋向于保护医师权益，是本文意欲彰显的一个要旨。医疗不作为侵权是一般侵权行为，因此主观过错是一个考察要件，而诚信善意人的观点有助于我们对该侵权的主观因素作准确理解，从而正确认识该侵权行为。医疗不作为侵权产生的责任，适用过错原则是合理的，作为该原则适用特殊形式的过错推定也具有很大价值。有鉴于医疗不作为侵权的行为方式和场合，且公平原则并非我国侵权法明定的归责原则，所以文章试以合理主义为概念来对该侵权产生的责任进行观念上分派。合理与理性相关但两者又显有区别。就医疗不作为侵权责任中的合理而言，患者的身体素质、疾病本身、医师的预料程度等都存在合理范畴。只有将这种合理范畴置于现实中去考察其必要性和可行性，才能提炼出法理上的合理主义。事实上，医疗不作为侵权责任以合理主义分派责任不仅有利于患者，同时也是对医师、医疗机构、甚至医疗事业的保驾护航，在根本上是为了更大多数人的利益，这一点显然没有违背本文主旨。在论证分析了医疗不作为侵权的法律特征、构成要件、责任分派之后，作为结论，文末提出了引进或建立医师责任保险制度。更多还原

【Abstract】 Medical care dereliction of duty infringement means infringement caused by dereliction of duty in medical care. This conduct happens on the basis of medical treatment relationship, and is regulated by infringement law for its particularity. At present, researchers pay more attention to macroscopical issues such as medical harm and medical accident, while discussion on issues in a more microscopic aspect such as dereliction of duty in medical care is quite few. This thesis is intended to present some thoughts on medical treatment from the viewpoint of dereliction of duty. First, the establishment of medical care relationship and its legal property are explained; then the legal definition of medical care dereliction of duty together with some related concepts are elucidated and the explicit manifestation of this infringement are explored; in chapter four, the qualifications and the onus probandi of this infringement are disgussed; in chapter five, the reasonable responsibility bearing of this infringement is discussed; in chapter six, some propositional advices on how to reduce the infringement by legislative measures are put forward.As to medical care relationship, in this thesis, it is not simply the kind of personal doctor-patient relationship generally understood by most of the people. Medical care relationship is constituted with two relationships: stipulated and non-stipulated. As a result of the complication, medical care dereliction of duty infringement should be approached from many aspects. Firstly, the implementary body and the responsible body of the infringement may be different or the same. In specific cases, to avoid generalization, they should be scrutinized. Secondly, how to define the obligation of the doctor in his medical practice and the medical institute? The particularity of the medical practice profession and medical institute leads to the necessity of the various sources of the doctor: professional obligations such as informing and explaining, or non-disruption of treatment, and other restrictions on doctors framed by the commonweal of the medical institute, etc. Thirdly, the different sources of the obligation lead to different manifestations of the dereliction of duty infringement. Thus, dereliction of duty may be caused by subjective shunting, objective limitation of professional skills, and weak responsibility awareness, etc. From the above three aspects, we can only reach a rudiment nomological concept of medical care dereliction of duty infringement. To reach a deeper and more precise understanding, it is necessary to differentiate this concept with other related concepts. Therefore, one chapter is devoted to list those concepts with comparison and contrast, so as to offer some circumstantial evidences.To fully understand medical care dereliction of duty infringement, it is necessary to research its constituent qualifications. According to China’s law, medical care dereliction of duty infringement pertains to general infringement, and is constituted by four elements: the act of infliction, the fact of infliction, the causal relation between the act and the fact, and subjective offence. The act of infliction, owning to its particularity and probability, should be examined from two perspectives: individual dereliction of duty and corporate dereliction of duty, which is also helpful in solving the problem of responsibility-bearing for the infliction so as to exhibit the justice of law. The fact of infliction, exhibiting the particularity of dereliction of duty infringement, should it be the depravation of the disease or the infliction caused by other complications because of the treatment, needs to be scrutinized and the approached differently. The assessment of the causal relation between the act and the fact is more difficult, so in this thesis, it is discussed from three aspects: its condition, its correspondence, and its complexity. Condition means the inevitable relation between the act and the fact of infliction. If the doctor’s act does not necessarily lead to the infliction or is just a slender factor of the infliction, the meaning of condition is manifested. Correspondence is closely related with condition, and it reminds us that there should be a limitation when we hold doctors to account, which is also a kind of protection and affirmation for the due medical practice on the doctor’s part. Complexity is exhibited in the analysis of many factors under uncertain circumstances such as time and space, the individual patient, and the individual doctor, etc. One major theme of this thesis is that the analysis of the complexity, more often than not, shows a tendency to protect the rights and interests of the doctor. As stated before, medical care dereliction of duty infringement is general infringement, and thus objective offence is one major assessing element. The point view of honest good-willed individuals would be helpful in reaching a full understanding of the subjective factors of the infringement as well as the infringement itself.The responsibility-accounting principle and its applicable offence range of medical care dereliction of duty infringement are reasonable. Its putative applicable range for special cases is also quite valuable. Owing to the circumstance and conducting manner of medical care dereliction of duty infringement, and the fact that impartiality principle is not the responsibility-accounting principle clearly stipulated by China’s Law of Infringement this thesis attempts to account the responsibility for this kind of infringement from the perspective of reasonableness. Reasonableness is related to rationalism and yet it is also different. As for infringement responsibility, there should be a reasonable range of the patient’s physic condition, the disease, and the doctor’s prognosis, etc. Only when all these factors are considered in real cases, can juristic reasonableness be achieved. In fact, the reasonable apportion of the responsibility of medical care dereliction of duty infringement is not only beneficial to the patients, but also protective for the doctors, the medical institutes, and the medical practice in large. So ultimately, it is beneficial to most people, which is also the purpose of this thesis.In the conclusion chapter, after discussing and analyzing the juristic features, constituent elements, and responsibility sharing of medical care dereliction of duty infringement, doctors’ responsibility insurance system is proposed to be introduced into China. This system is quite common in the western developed country but its application in China still requires a lot of discussion.Bearing a step-by-step basic structure, with comparison and contrast, adopting a research method of from the general to the specific, the phenomenon to the essence, this thesis follows the natural cognitive law of people. Still bearing some flaws, such as the incompleteness of the thinking on the system construction and lack of specific suggestions, the thesis is open to comments, criticisms and advices for improvement.更多还原