我国医患法律关系属性的定位选择

The Position Selection of Legal Relationship Between Doctors and Patients in China

医患法律关系的定位已经成为处理诸多医疗纠纷案件的关键之所在,明确医患法律关系的属性对于正确处理医疗纠纷具有重大的指导意义。目前法学界普遍认为医患法律关系具有私法性,应受民法调整,可将其定位为民事法律关系。但同时,医方在特定条件下对患者的强制诊疗、强制治疗,以及对医疗争议的行政处理,行使了很多带有国家干预的公法色彩的行为,应受行政法调整。鉴于医患法律关系具有二者法律关系相互交错的特殊性,应确立一种受医事法律所调整的独立于两种法律关系之外的医事法律关系。

The controversy has lasted for a long time aimed at the legal relationship between doctors and patients.The position selection has become the key point for dealing with medical disputes.It's important to clarify the relationship for dealing with medical disputes.Currently,in law circles,it is generally believed that the legal relationship has private property,which should be adjusted by the Civil Law,and orientated as civil legal relationship.Meanwhile,the hospital should be restricted and adjusted by administrative law,when it takes the enforcement treatments on patients in specific situation,administrative settlement on the medical disputes with the administrative intervene.In view of the interactive characteristic of the legal relationship between doctors and patients,the author suggests to build a medical law relationship,which adjusted by the medical law,while independent of the civil law and administrative law.