| In recent years,doctor-patient conflicts and medical accidents occur frequently,and arbitrary medical behavior has become the focus of academic attention.Arbitrary medical behavior is a kind of medical behavior in which doctors carry out diagnosis and treatment without the consent of patients and against the will of patients.The arbitrary medical behavior discussed in this paper is a broad concept,which has three attributes:Contrary to the patient’s will,invasive and substantive damage.From the perspective of today’s judicial practice,the limitations of the civil field,the norms of criminal law in line with medical safety and the interests of patients,and the modesty of criminal law,this paper discusses the rationality of the inclusion of excessive medical acts in arbitrary medical acts.Firstly,this paper introduces three theories,namely "all incrimination theory","all innocence theory" and "partial incrimination theory".The author chooses "partial incrimination theory" as the supporting theoretical point of view and discusses it."Partial incrimination theory" holds that arbitrary medical acts should be regulated according to the situation,the acts that violate the patient’s right to informed consent and have not caused serious damage should be included in the civil field,and the acts that cause serious damage should be criminalized by criminal law.Only when arbitrary medical behavior brings unnecessary damage to patients can there be room for crime.Secondly,through the analysis and Research on the legitimate elements of arbitrary medical behavior,the author makes it clear that the patient’s abuse of informed consent,emergency medical behavior and compulsory medical behavior are three legitimate reasons for arbitrary medical treatment.Finally,from the perspective of comparative law,by comparing China’s current practice and the views,theories and practical precedents of Germany and the United States,this paper discusses the possibility of the application of charges for excessive arbitrary medical acts.According to China’s current practice,when identifying specific crimes,we should judge whether there is room for conviction in the crime of intentional injury or the crime of medical accident according to the situation of the case,so as to convict and punish effectively.Arbitrary medical behavior may not only lead to tort of civil law,but also lead to penalty.The criminal law regulation of arbitrary medical behavior is not only conducive to protecting the interests of patients,but also conducive to creating a friendly modern doctor-patient relationship.Therefore,the correct application of the penalty of arbitrary medical behavior is the current practical need of our country. |
