| Arbitrary medical treatment has the basis of criminal punishment because of its infringement on patients’ physical health interests.At present,the academic circle divides the arbitrary medical treatment behavior into two kinds: the narrow sense and the broad sense.In the narrow sense,arbitrary medical treatment is the medical behavior that disregards the meaning of patients and their related persons.In the broad sense,arbitrary medical treatment includes both the narrow sense and compulsory medical treatment and emergency medical treatment,but not all arbitrary medical treatment needs criminal punishment.It is generally believed that emergency medical treatment and compulsory medical treatment should not be investigated for legal liability due to their legal admissibility,but the narrow sense of arbitrary medical treatment without obtaining the informed consent of patients,causing serious injury or death to the patients should be identified as a criminal act.Effective patients informed consent for medical behavior of criminal illegality deterrent for can "understand",the three elements of "voluntary" and "agree",not only related to the medical behavior can constitute a legitimate business behavior relates to whether the medical behavior also have criminal illegality,so need to combine medical field for justice.At the same time,because of the medical purpose of arbitrary medical behavior,so when regulating arbitrary medical behavior through criminal law,it is generally identified as the crime of medical malpractice,but there are great differences on the determination of medical negligence in judicial practice.Based on the new negligence theory,the author deeply analyzes the subjective duty of care and objective duty of care of the doer when the arbitrary medical behavior is identified as the crime of medical malpractice,so as to solve the difficult problem of negligence identification in practice. |
