Malpractice Crime Legislation Perfection

Crime of medical accident is a newly-added crime in the Criminal Law of the People's Republic of China taken effect on Oct. 1, 1997. According to the Article 335 of the Criminal Law of the People's Republic of China, "The medical staffs that cause the death of patients or serious injury to patient's health because of their serious irresponsibility for their medical work shall sentenced to no more than three years' imprisonment or detention." It can significantly prevent the medical accidents and punish crime of medical accident. But there are still some controversies over the theory and the practice at present, which has affected correct application of the crime. The penman has a primary exploration to the constitution and legislative perfection of the Crime of Medical Accident.This thesis, over 35, 000 words, includes three parts.The first part: The criminal legislative necessity and value tropism of the crime of medical accident. Medical accident is the premise of the crime of medical accident. The article introduces the concept and the constitution of medical accident, and the difference from medical malpractice. The fundamental part insists in sequent. The article gives a simple introduction to the legislation concerned medical accident abroad and in Taiwan of China. It discussed the legislation value tropism, pointing that medical treatment concerns the life and health of the person seeking medical service, so criminal law ought to intervene the field to regulate it.The second part: The constitution of medical accident. Based on the analysis of the object, the objective elements, the subject and the subjective elements of crime of medical accidents, the article holds that the object of crime of medical accidents includes government's administrative order of medical treatment and the right of life and the right of health in Criminal Law; the subject of crime of medical accident only includes the medical staffs who are directly engaged in medical treatment. In the study of the objective elements of crime of medical accidents, analyses are made on the negligence in medical treatment, "serious injury to patient's health" and the identification of criminal causality and our opinion are proposed. In the study of the subjective elements of crime of medical accidents, analyses are mainly made on the content and basis of attention obligation in medical treatment and the judgment of attention ability. On the other hand, medical treatment itself decides that it is impossible to absolutely avoid risk and failure in this field, so the Theory of Allowable Risk should be applied to limit the responsibility of medical worker.The third part: Legislative perfection of crime of medical accident. From some perspectives, i. e., accusation, facts about a crime and measurement of penalty, the article illustrates the shortcomings existed in the legislation of crime of medical accident in the Criminal Law of the People's Republic of China such as legal punishment on the low side, punishment plant from first-class issue, and further suggests the necessity of amending our legislation for better performance in judicial practice.