Research On Judicial Determination Of Assumed Commitment In Medical Behavior

In practice,the doctor-patient disputes caused by doctors’ negligent performance of duties are mostly caused by poor communication between doctors and patients,and the disputes focus on what kind of commitment to make and the degree and limit of the commitment.Specifically,in medical behavior,doctors should undertake the obligations of "obtaining the consent of patients" and "telling the truth".Patients lose the opportunity to make a promise or make a real promise because of the defect of the doctor’s notification of obligation performance(because the doctor’s notification of the defect of obligation performance causes the patient to make a defect expression).Under the above circumstances,the doctor will assume that the patient makes a promise and implement the treatment based on the promise.Because this behavior only infringes the patient’s right of self-determination,it is essentially different from the injury behavior in criminal law,so in practice,it is often characterized as "arbitrary medical behavior",and the behavior may only involve civil liability.Different from China’s judicial practice,there are relevant precedents in Germany that define this kind of behavior as injury behavior in criminal law,and discuss the criminal responsibility of this kind of behavior under the assumed victim commitment theory.Article 335 of China’s Criminal Law stipulates the crime of medical malpractice,which clearly stipulates that doctors who are seriously irresponsible,causing the death of patients or seriously damaging their health should bear criminal responsibility.According to the law of our country,is it possible to include the medical behavior performed by the signing doctor without the patient’s commitment into the medical negligence? If the patient makes a promise,can the doctor block the illegality of the behavior through the "assumed victim promise" ? Exclude the harmful nature of behavior? How can we determine the nature of the doctor’s behavior if the patient does not make a commitment to ratification?The first chapter,based on the current situation of judicial practice in China,leads to problems through cases,and distinguishes confusing theoretical concepts,so as to clarify which theories are applicable to solve problems in different situations.First of all,through combing typical cases,it is clear that in practice,the problem of doctors’ recognition of the nature of medical behavior based on assumed commitment is that this behavior is only considered in the field of "arbitrary medical behavior",while its possible criminal responsibility is ignored.According to the provisions of Article 335 of the Criminal Law of China on the crime of medical malpractice,referring to the spirit of relevant cases in Germany,this kind of medical behavior should be considered within the scope of the assumed commitment theory.Whether the behavior can be convicted through the legitimacy of this theory,the subjective state and objective result of the doctor at the time of the behavior should be considered,and whether the patient will make a commitment should be recognized comprehensively.Secondly,both of them are widely used in the medical field.In order to better use this theory to solve problems,this paper compares the assumed commitment theory which is easily confused with the assumed commitment theory and expounds the relationship between them.The assumed commitment in the broad sense includes the assumed commitment and the assumed commitment in the narrow sense,and the difference between them should be discussed from five aspects:conceptual nature,applicable premise,object of consideration,time requirement and applicable conditions.The second chapter,this part mainly sorts out the basic theoretical problems of the assumed commitment of the victim,and lays the foundation for the development of the judicial judgment program of the assumed commitment later.First,clarify the nature of the assumed victim’s promise,and explore the underlying logic behind the theory’s illegal rejection.Assuming that the victim’s promise belongs to the three-class theory,the reason why the illegality of the act can be blocked is that the promise content contains the expression of giving up the interest,which is a kind of free disposal of personal interests,and an act of giving up the interest given by criminal law within the scope permitted by law without harming the public interest.Secondly,it shows two opinions in support of the assumption that the promise is illegal.First,it supports the judgment method derived from the German case-when the judgment result is in doubt,it will be judged in favor of the defendant;Second,there is no causal relationship between the result and the behavior,which is embodied in two forms.First,the result is not caused by the medical behavior;Second,although the result is caused by this medical action,it is a risk allowed by law.The third chapter,through combing the problems in the judicial characterization of medical behavior,combined with the problems,puts forward the specific judgment path of behavior.The combing of problems includes practical problems and theoretical problems.The practical aspects are as follows: First,the application of law is unclear when the nature of behavior is determined;Second,the judgment order of the elements is not clear when judging the nature of behavior.Specifically,in the application of law,there is no clear answer as to whether we should apply the Regulations on Handling Medical Accidents or the Standards for Appraisal of the Degree of Human Injury to determine the nature of behavior;Next,taking the problem as the guide,it discusses the specific judgment path in judicial application.First of all,regarding the unclear application of the law,we should apply the Criterion for Appraisal of Human Injury Degree in the field of criminal law,because the behavior has all the constitutive requirements of the crime before the commitment,and the patient’s commitment belongs to the reason of illegal obstruction,which is a problem in the field of criminal law.Secondly,for the confusion of theoretical viewpoints,through theoretical comparison,it is confirmed that it is more scientific to apply the theory of "investigation of behavior and result in turn" as the basis for judgment.Finally,based on the theory of "investigation of behavior and result in turn",a hierarchical judgment path is constructed.When determining the nature of behavior,we should judge the behavior and result in turn,combine the sequential judgment with the subjective and objective elements,and then consider whether the patient will make a commitment or not in the illegal and obstructive class,and finally determine whether the doctor’s behavior is innocent or not.Or bear civil liability? Or criminal responsibility? Including negligent crime and intentional crime.At the same time,the behavior consideration class is embodied in two subjective states.The first is to treat patients.Second,it is not for the purpose of treating patients.If it is for the purpose of not treating the patient,regardless of the intention of intentional injury,or to hide the surgical error,whether the patient finally makes a commitment or not,the behavior is harmful,so it is suspected of intentional crime;If the purpose is to treat patients,it is necessary to consider whether the behavior violates the medical rules when judging.If the medical rules are not violated,the objective results should be considered,and if no damage is caused,the negligent crime will not be involved;If the result of health damage is caused,it constitutes a negligent crime at the level of constitutive requirements.If substantial material damage results,it is necessary to obtain the victim’s promise or the doctor has sufficient reasons to prove that the patient will make a promise and the treatment behavior should improve the patient’s health as a whole,so as to stop the illegality of the behavior.As for the case where there is doubt about whether the patient will make a commitment at the time of the act,the principle of "in favor of the defendant when in doubt" should be applied.The fourth chapter,discusses the special problems within the scope of the assumed promise,including the recognition error when the promise is made and the recognition problem when the victim is tricked into making the promise.First,the patient thinks that the promise does not exist but actually exists,which is considered as the nature of harm;When the promise actually exists but the patient thinks it does not exist,it is necessary to judge whether it constitutes a crime according to the specific situation.When the specific content is misunderstood,the confirmation of the constitution crime should be based on the patient’s explicit refusal,otherwise,the principle of "benefit the defendant when in doubt" should be adopted.Secondly,when the patient is deceived to make a promise,the "wrong theory of legal interest relationship" should be used as the criterion,and when the motivation is wrong,the promise is valid;When there is an error in understanding the specific legal interest or behavior nature of the promise,the promise is invalid.