A Study Of Medical Negligence Crime Based On The Objective Imputation Theory

Influenced by traditional negligence theory,duty of care is regarded as the core in medical accident crime in China.The duty of care can solve some basic problems of negligence,but due to the ambiguity of the standard of violation of the duty of care obligation which leads to the special malpractice crime of medical malpractice faces the problem of blame in judicial practice.Objective Imputation Theory originated in Germany and the content of the theory includes not only the advantages of the traditional negligence theory,but also the improvement and development of the ambiguities in the traditional negligence theory.It has its own complete and logical responsibility attribution system,and evaluates the occurrence and realization of risks that are not allowed by law as the core to judge the attribution of responsibility.Objective Imputation Theory starts from the equivalence of an objective perspective,creates a framework with objective purpose and norms for identifying standards,and reconstructs the wrongful law through the "law does not allow risk creation,the law does not allow risk realization,and the scope of constituent elements".The connotation of the crime theory system is improved,and the determination of causality and the attribution of responsibility are distinguished.Attribution and imputation are carried out.By comparing the traditional fault theory,the combination of objective elements and the connotation of negligence in negligence and other defects in the four-element crime theory system,it can be seen that Objective Imputation Theory is necessary to distinguish between attribution and imputation and to resolve cases of negligence.Besides,the theory distinguishes facts and norms from the "behavior-result" argument process,clarifies the boundary of legal interests protection.The objectivity of the causal process and the consistency of the identification model,as well as the essential nature of the concept of criminal constituent elements with legal interest protection,show that the theory can be appliedto China's criminal law.Through in-depth analysis of medical malpractice crimes in combination with typical domestic cases of medical negligence crimes,the target of behavioral blame is the risks that are not allowed by the medical norms.After removing the risks allowed by the medical norms,the medical risks of patients are reduced.The thesis discusses how to judge imputation in the specific medical negligence case and analyzes the realization of medical legal risk from the aspects of medical causal judgment,increased risk,and self-responsibility of the patient.