论医疗服务合同的性质

Discussion on medical service contract character

关于医疗服务合同的性质,学界有服务合同说、承揽合同说、委托合同说和雇佣合同说。但无论哪种学说都有不足之处,不能全面准确地解释整个医疗服务过程。笔者认为,对医疗服务合同性质的认识应当从整体把握,将医疗服务合同视为由委托(特别情况为承揽)、买卖和租赁等部分组成的混合合同并与合同联立相区别,只有这样才能在发生纠纷时正确适用法律,公正解决医疗矛盾。

Character of medical service contract was discussed widely. Based on literature review, there were service contract, work contract, trust contract and employment contract. But the above 4 views all could not explain the whole medical service proceeding. The author thought medical service contract character should be determined as a mixed contract of trust, sales and leasing. And the mixed contract should be distinguished from union contract to adapted law correctly in medical dispute solution.