A Study On The Attentive Duty In The Malpractice Crime

Malpractice crime is a kind of duty negligent crime stipulated in Criminal Law of China of 1997. Due to the character of complexity, high risk and science contained in medical practice, malpractice crime has to face many difficulties on theoretical research and judicial recognition.The essence of negligent crime is the violation of attentive duty. Therefore, the issue of attentive duty in malpractice crime is essential to solve theoretical and practical difficulties. The attentive duty in malpractice crime can be divided into abstract attentive duty and concrete attentive duty. The former refers to the attentive duty requires all medical staff to abide universally according to the requirement of laws, statutes, regulations and medical operating procedures, the latter refers to the attentive duty which endows medical staff practically according to the concrete condition when medical staff are in practice, and with the consideration of other increased or decreased aspects of attentive duty, is dynamic instead of static. The attentive duty in malpractice crime roots in the laws, statutes and regulations on medical treatment and sanitation, the common technical criteria in medical treatment, the level of medical treatment and the inner rules in medical organization. They are all under the acknowledgement of criminal law and include result forecasting duty and result avoiding duty. There are also some special attentive duties, such as explanation duty, doctor-seeing duty, hospital transfer duty and surveillance duty.During the process of judicial appraising in malpractice crime, abstract attentive duty can be transformed into concrete duty. The aspects which influences and determines the transforming process include the concrete circumstances in medical practice,"allowed peril","the principle of mutually trust", the distribution of attentive duty in common medical treatment.Attentive ability is the subjective condition and one of preconditions of the performance of attentive duty, the combination of psychological ability and conduct capacity, whose content is corresponded with attentive duty. The appraisal on the medical practitioner's attentive ability should adopted"objective criterion of adequate attentive duty", that is the criterion of attentive ability when average person perform the attentive duty under the same circumstance.The criterion of the acknowledgement of negligence in malpractice crime is the serious violation of attentive duty, the sequence of acknowledgement is abstract attentive duty- concrete attentive duty-the condition of forecast which regards the attentive ability as the core-the violation of attentive duty or not-the committing of criminal negligence or not.