Study On Imputation Of Medical Negligence

In the civil law countries represented by Germany and Japan,the study of medical negligence crime has given more attention than the study of medical negligence crime,as an important component of medical criminal law,while the common law system has also formed its own system in the study of medical negligence crime.This paper takes the theoretical achievements and practical experiences of the two legal systems in relation to medical negligence crimes as the basis for reference,sorts out the theoretical basis of medical negligence imputation,and clarifies the conflicts and dilemmas of medical negligence imputation in China through empirical research,and actively explores a path of medical negligence imputation with balanced distribution of obligations between doctors and patients and reasonable attribution of responsibilities.Firstly,the concept of medical negligence is clarified.The investigation into medical negligence begins here.By examining the interpretation of the concept of medical negligence in different countries or regions,I clarify the essence of medical negligence and business negligence,and clarify the connotation and extension of medical negligence with the help of the concepts of negligence and business negligence,and summarize the characteristics of medical negligence by comparing business negligence and ordinary negligence.I compare the "medical routine theory" adopted in China’s mainland,the "medical standard theory" adopted in Japan and Chinese Taiwan,and the "reasonable person standard" adopted in the common law system in order to determine the standard of medical negligence.It is advised that a set of standards be used to identify medical negligence,with the principles of respectable minorities,clinical environments,and patient factors acting as pillars.The application of the criteria for determining medical negligence requires the setting of goals for practice from a theoretical perspective.Secondly,on the one hand,I analyze the problems in the process of medical negligence attribution by studying the application path of traditional negligence theories such as the old negligence theory and the new negligence theory in the field of medical negligence;on the other hand,I discusse the problems in medical negligence attribution from the perspective of judicial practice.Finally,the theory of permissible risk,the principle of reliance and the theory of allocation of risk are used as guiding principles to reasonably allocate the duty of care of physicians in order to achieve a reasonable imputation of liability.After analyzing the theory of imputation for negligence,the indispensability of the normative protection purpose theory in the imputation of medical negligence is clarified,and then the two branches of the normative protection purpose theory,the normative protection purpose theory and the constitutive protection purpose theory,are discussed separately to regulate the outcome of imputation by limiting the constitution of wrongdoing.