日本的医疗合同

Japanese Medical Contract

在发生医疗事故的情况下 ,引发医疗事故的医疗行为既具有违约行为的性质 ,又具有侵权行为的性质 ,即发生“责任竞合”的问题。日本学术界及司法实践 ,对于医疗事故诉讼 ,一般多采用主张违约责任来追究医院或医生的医疗事故责任的方式处理。与追究医院或医生侵权行为责任时由原告患者承担举证责任的情形不同 ,追究医院或医生违约责任则由债务人医院或医生承担举证责任 ,债务人如果不能证明该违约责任不是由于自己的原因引起的 ,则不能免责 。

When a medical accident occurs, the causes are usually characterized as the following two acts:one is the tort,and the other is the break of a contract in the case of medical accidents. In Japan, the theory and corresponding legal practice for the case of breach of contract holds that the liability must be undertaken by the hospital or the doctor.It is particular that the payment of the expenditure for the investigation of the liability is done by the hospital or the doctor who is in any case considered as the debtor to the liability. If the debtor failed to prove that the breach of contract is not caused by himself, he would practically undertake the liability. This kind of contract is obviously more favorable to the patient.