以利益均衡构筑权利保障——浅析侵权责任法立法价值取向及其对医疗机构的几点启示

Right Guarantee Based on Benefit Equilibrium:Analysis of the Legislative Value of Tort Liability Law and a Few Enlightenments for Medical Institutions from it

利益均衡旨在于利益关系主体之间寻找平衡点,尽可能将内部矛盾冲突降低到最低限度,保持利益体系和利益格局的稳定,其最终目的是实现权利保障,而法律制度的确立则是最有公信力的长效调整机制和保障机制。从侵权责任法医疗损害侵权行为构成要件和归责原则的确认、 "举证责任倒置"的改变、医用产品连带责任和不必要检查侵权的规定等几个方面,体现出其以医患双方利益均衡为前提、确保双方权利充分保障的立法价值取向。立足于此,医疗机构应树立对医方权利和患方权利给予同等重视、理解患者合法权利内容、界定合理的医患双方权利义务界限、增强权利自我维护意识的发展观念。

The aim of benefit equilibrium is to find the balance of the subjects of the benefit relation, intend to reduce the internal contradictions to a minimum, and keep the stabilization of the benefit relation and the balance of the benefit structure. Right guarantee is based on benefit equilibrium, and the establishment of legal institutions is the most creditable mechaniam for regulation and guarantee. The legislative value of tort liability law is to guarantee the rights of both the medical side and patients through benefit equilibrium between the two sides. It can be reflected in the confirmation of the component parts of the medical damage tort and criterion of liability, the change of shifting burden of evidence, joint responsibility for medical products and the rules that practicing unnecessary medical inspections is a kind of tort. Based on this, medical establishments should give the same weight to the right of medical side as to the patients＇, in the meanwhile, understand the content of patients＇ rights, define the boundary of the rights and obligations between medical side and patients, and strengthen the awareness of rights protection.