刍议医疗诉讼中法官的自由裁量权

Judiciary Discretion in Medical Lawsuit

严格适用法律是法官的天职,但各国司法实践中法官普遍存在着自由裁量问题。医疗诉讼案件的高度专业化的特性、医事法律的不周延性和滞后性,不仅提高了审判难度,也增大法官自由裁量空间。实现医疗诉讼中法官自由裁量权的平衡,需建立专业医疗诉讼法官队伍,克服医疗纠纷案件惯有的审判情结,限定自由裁量权的行使边界,平衡司法能动与司法克制的关系,在质证、认证中适度的司法能动。以减少医疗诉讼负面效应,化解医患纠纷,实现公正的医疗司法。

Applying the law strictly is bounden duty of the judiciary. However, there is judiciary discretion in juridical practice in the world. The highly specialized medical lawsuit and unthoughtful hysteretic medical law increase the difficulty of the trial and the space of judiciary discretion. In order to keep the balance of judges discretion, we need to set up a professional medical lawsuit judge team, conquer the customary complex of medical dispute cases, restrict the boundary of discretion, balance judicial activism and judicial restraint relationship and keep proper judicial activism in cross-examination and authentication. In that case, it can reduce medical lawsuit negative effects, defuse medical dispute and realize justice of medical judicial.