南京国民政府时期医患纠纷解决机制的动态考察

Settlement Mechanismfor Medical Disputes in the Nanjing National Government Period

处于传统向现代过渡背景下的南京国民政府借鉴西方经验,从法律法规、机构设置、人员结构方面对医患纠纷解决机制的建构都已经初具规模,体现西方法律精神的文本表达比较规范,但在实际运作时却经常遇到中国传统情理法困扰。透过历史司法案例从诉讼、调解与和解这三个方面考察南京国民政府时期医患纠纷解决机制的运作机理,表明司法机关无法完全按照西方的严格法条主义解决纠纷,必须充分考虑中国传统的情理,同时司法官也不能独立做出判断,必须借助医学团体以及行政的力量,因此顶层设计的全盘西化与厚重的传统文化的剧烈博弈,是导致南京国民政府时期医患纠纷解决中表达与实践背离的主要原因。

The Nanjing National Government, which was in a transition period from tradition to modernity, drew lessons from western countries and constructed a settlement mechanism for medical disputes, which not only took shape in the aspects of legislations, organization, personnel, etc, but also worked out many normative regulations or documents that embody the spirit of western laws. However, the mechanism often met challenges from Chinese traditions when it was in operation. This paper studied the settlement mechanism for medical disputes during the Nanjing National Government Period through some historical judicial cases and from the aspects of litigation, mediation and reconciliation. The results show that judicial organs were not able to completely resolve disputes according to the strict western doctrines and they often gave full consideration to Chinese traditions; judicial officers could not make independent judgments, and had to draw support from medical organizations or government. Therefore, the conflict between fully-westernized top-level design and deeply-rooted traditional culture is the main reason for the failure of the mechanism during the period.