The Study On Crime Of Medical Accident

Crime of Medical Accident is one typical offence of vocationalnegligence, it is reasonable that this crime is solely stipulated in ourcountry's Criminal Law. But the stipulation of Criminal Law is so shallowabout this crime that it doesn't accord with law-based penal principle. Thefocus of scholars'debate is fastened on the accusation,the subject,thesubjective elements and objective elements of Crime of Medical Accident,while the scholars almost agree on the object of Crime of MedicalAccident. At the same time there also exists some disputes on the penaltyof Crime of Medical Accident. This paper wants to make further researchon the accusation,the constitution and the penalty of Crime of MedicalAccident, with the hope that it would be helpful to the theoretical studyand judicial practice of crime of medical accident in China.This paper concludes three parts.The first part is Summarize. First of all, it discusses the accusation ofCrime of Medical Accident, and gets one conclusion that the accusation ofCrime of Medical Accident should be defined as Crime of Medicalliability accident. Secondly, this paper makes a comparison on the Crime of Medical Accident between China and abroad after a simpleintroduction to the legislation concerned Medical Accident of foreigncountries,Taiwan of China and a review of the legislation evolution inChina.The second part is the constitution of Crime of Medical Accident.From the point of the objective elements of Crime of Medical Accident,this crime occurs in the normal medical treatment, and behaves thatduring the medical treatment,the subject of the crime breaks the relevantlaws,administrative rules and regulations and grossly neglects his duty,which causes death or severe harm to the health of the patient. Theconviction of the causation in this crime is difficult and crucial, becauseadmissible risk,trust principle and expected Possibility all can stop theconviction of negligence crime. The subject of the crime should ownessential and formal qualifications, so the administrative and logisticpersonnel in the medical agency can't commit the crime, but the medicalagency can become the subject of Crime of Medical Accident. The subjectelement of Crime of Medical Accident is criminal negligence, so the resultof death and severe harm to the patient is because that medical personnelviolates the duty of care.The third part is the penalty and the improvement of Crime ofMedical Accident. On this crime's penalty, the author thinks that thepenalty is so single that it is unfavorable to punish and prevent the crime, so we should add the pecuniary punishment, although it is worthconsidering the necessity and feasibility to add qualification punishment.Considering the particularity of medicinal treatment,the purpose and thebenefit of the penalty, the author thinks it is reasonable that the highestpossible measurement of this crime's penalty is lower than othervocational negligence crime's penalty, so it needn't increase the highestpossible measurement of penalty of Crime of Medical Accident.