医事刑法基本问题研究

如果不对医事刑法研究的共通原理进行挖掘,医事刑法学作为一门"学问"就永远无法得到确立。医疗行为的正当化根据应当依照区分治疗行为和非治疗的医疗行为展开讨论。治疗行为的正当化根据,存在治疗行为伤害说、治疗行为非伤害说和中间说。治疗行为伤害说具有妥当性。治疗行为的正当化根据在于患者优越利益的实现,非治疗的医疗行为的正当化根据在于危险承受。患者的自我决定权是重要的,但不是万能的,只能在相对的自律中尽可能地尊重患者的自我决定。应当从实施主体、医疗家长式作风、医疗正当程序三个方面对患者的自我决定权进行制约。小组医疗中过失竞合时责任主体的限定,不仅要考虑因果关系的相当性,更应重视各个过失行为的正犯性等归责因素。小组医疗中也有适用信赖原则的余地。小组医疗中信赖原则的适用以分工的确立为前提条件,以存在实质的信赖关系为根本条件。

Medical criminal law can never establish itself as a branch of ＂learning＂ unless efforts are made to explore the common principles in medical criminal law studies. The justification of medical treatment is determined by the distinction between treatment and non-curing medical care. For the justification of medical treatment, there exist theories of injury and of noninjury by medical treatments, and theory of compromise. With regard to theory of injury caused by medical treatment, it carries appropriateness. The justification of medical treatment lies in the realization of the maximum interests of the patient while the justification of non-curing medical care can be determined by risk-bearing. Though the right to self-determination of patient is important, yet it is by no means omnipotence. Only with relative self-discipline, may we try our best to respect patent＇s self-determination. Nevertheless, it should also be restricted from the following three aspects： implementation subject, medical paternalism and medical due process. In setting a limit on person/subject liable for negligence concurrence in team medical treatment, consideration should not only be given to the correspondence of causal relations, but also to elements of liability fixation such as principal offender of negligent conduct. The principle of trust may also be applicable in team medication, taking division of work as its prerequisite and substantive trust relationship as its essential requirement.