【作者】 赵彬；

【导师】 杨淑娟；

【作者基本信息】 吉林大学 ， 社会医学与卫生事业管理， 2010， 硕士

【摘要】 近年来,我国医患关系紧张,医疗纠纷频发已成不争的事实,以往被人们广泛接受并采纳的解决医疗事故的方式多是承担民事责任、行政责任,近几年医疗事故的频繁出现引发人们对我国现行医疗事故法律责任进行再思考,更加认识到承担刑事责任在解决医疗事故方面的作用。因此,对于医疗纠纷及医疗事故刑事责任的界定和研究,具有重要的意义。本文从理论研究和实证研究两方面入手,首先对国内外医疗事故责任立法进行研究,在参考国外先进经验基础上,对我国医疗事故罪概念及构成等理论作了详尽的阐述,并提出医疗事故刑事责任的法律适用。其次通过文献分析、问卷调查、案例分析等方法,以1997年至2009年全国医疗事故刑事罪判决案例,以及长春市各级法院医疗纠纷案例为研究对象,剖析现行的医疗事故刑罚在医疗事故罪的法定刑规定中的缺陷和不足,并提出解决及完善对策:通过加强医疗事故法定刑配置,加强医疗体制改革与发展,促进医疗鉴定法制化,强化重大医疗事故罪的应用等方面,完善我国医疗体制与医疗保障体系,重建和谐的医患关系。更多还原

【Abstract】 Medical health is the basic social guarantee for human beings, which is closely related to people’s health and life quality. It is also the part of constructing socialist harmonious society. The development of health medical is an important national symbol of health material and spiritual civilization, as well as an important prerequisite and safeguard. Medical and health activities is a complex scientific activities, because of the awareness limitations of patients and communities, responsibilities of medical staffs, the complexity of the disease, as well as the medical and health technology , the risk management, will inevitably lead to medical malpractice. In recent years, the government pays more attention on medical health, the advocacy of social media; the attention-degree of general public on medical health rose. At the same time, public awareness of the law increased, the physician-patient relationship has become a common concern as a hot topic. If can not handle the physician-patient relationship properly, will damage the interests of both doctors and patients, and could even affect the development of medical health. Medical malpractice responsibility has been extended to criminal responsibility. Section 335 of the 1997 New Medical Malpractice Criminal claims "medical personnel because of doctor’s serious irresponsible who caused death or serious harm to a patient’s physical health, condemned to term imprisonment or criminal detention." Investigated on the crime of the provision of a medical malpractice responsibility has a positive effect on such incidents, while provides the basis evidence for Medical treatment.The first part: by analyzing the ancient and modern, and the development of the crime after the founding of medical malpractice cases and related legislation, to find out the characteristics of the development process of the ancient medical crime, and discuss the medical responsibility legislation situation of developed and developing countries .The second part: from the point of view of the criminal responsibility, the medical theory of crime, including the research of subject, object, subjective and objective aspects of medical crimes, the comparisons between medical malpractice responsibility crime and other criminal offenses, and comparative analysis the boundary between the non-crimes and intentional homicide, then summing up the medical criminal responsibility application of law.The third part uses questionnaires, case analysis, document analysis, interviews, case studies and other methods on the relevant information and data analyzed, to combine the legislative practice of medical responsible issues related to medical accidents which were compared with criminal responsibilities and discussions, summarizes the medical distinction between criminal and other criminal offenses and characteristics, and proposed the problem of the construction of crime incidents and identify urgently.Medical Malpractice is a typical professional negligence crime, it is reasonable to separate the regulation of the Criminal Law Medical Malpractice, however, at present the research of malpractice crime theory and practice is weak, there are a number of problems in its theory, and judicial practice can not be unified. Both medical malpractice and other crime incidents, has its social harm, the subjective intent and damage results, Analyze the cases of medical malpractice from 1997 to 2009, the author find out the problems in the practice of medical malpractice criminal justice, including the following parts:1. The elasticity of medical malpractice sentence.2. Shortage types of criminal punishment in medical malpractice.3. Universally use of private settlement in major medical institutions.4. Risk of co-existence between doctors and patients.5. Improvement of compensation efforts in medical malpractice.The fourth Article proposed to further improve of medical Crime of measures and countermeasures:1. The punishment to configure out medical attention, including:(1) Rules in the medical malpractice.(2) The correct definition of "serious harm to a patient’s physical health".(3) Appropriately increase the maximum sentence of medical malpractice.(4) take full concerns of the facts of crime, nature, and many other factors, should better comply with probation(5) Based on the conditions of less serious, harmful consequences, the increase of fine penalty should be used.(6) Concerning of the subjective malignant, the consequences of a serious crime or serious crime incidents, can be applied to penalty and ordered to prohibit qualified practitioners.(7) Creation of a major Medical Malpractice. In order to definite the concept and characteristics of crime incidents , and find out the subjective intent which cause serious harm and attributed to medical malpractice cases, should be penalized accordingly. As the specialty of medicine, it should be carefully divided on responsibilities.2. Acceleration the reform of the medical systemThe goal of Chinese health system reform is to move towards the market, commercial direction. The reform of the health care system should be cooperated with market demand; medical institutions should be in operation towards the process of standardization and legalization. Transparent medical activities and medical office working can apply the physician-patient relationship a harmonious environment, as well as a performance of patients’rights. The Discussion and Analysis of medical malpractice is only appropriated in the medical issues, and how effectively and positively improve our medical and health, should be focused on the reform of national health care system. Because of the boundary of law, our health care and the reform of health system, the government must support to increase the input on the medical profession, while the media should play a positive role to increase the medical health publicity.3. Legalization of medical identificationMedical malpractice appraisal should study on many areas, including law, medicine, ethical, social and many others. Therefore, it’s necessary in medical identification in the process of improving the fairness, apprentice, and authority to increase the transparency of the process identified, which provide the evidence of conviction and sentencing of medical malpractice.4. Improvement of the medical security systemTo improve the health care system and increase the implementation of medical responsibility insurance, medical malpractice for treatment has to play a positive role, and also ensure the protection the rights and interests of patients, hospitals and medical staff in maintaining the medical order. The medical work on protecting of health security and promoting hospital works played a significant role.5. Improvement of physician-patient relationshipTo improve the doctoral-patient relationship and fundamentally relieve the disputes should be strengthened to implement the macro aspects, in order to create a harmony environment in the doctor-patient relationship.更多还原