境外刑法中的医师说明义务

The Informing Duty of the Physician in Foreign Criminal Law

在外国刑法中,为获得旨在使医疗行为合法化的患者的承诺,医师有义务将医疗行为相关信息全部告知患者。医师说明义务在内容上包括为获得患者承诺之说明、作为治疗行为之说明和劝告转医之说明。应当征得患者同意而未取得患者承诺的医疗行为是专断医疗行为,国外司法实践中多以伤害罪追究专断医疗行为的刑事责任,但是理论界大多赞同以强制罪追究专断医疗行为的刑事责任。

In the foreign criminal law, in order to obtain the commitment of patients, with the aim of legalizing medical behavior, physicians have the obligation to inform all associated medical information to the patients. In the content, demonstrative obligation of physicians includes: descriptions to obtain the commitment of patients,descriptions as a treatment behavior and descriptions of advice to turn medical. The certain standard to determine whether physicians fulfil demonstrative obligation includes: rationality physician standard, rationality patients standard and concreteness patients standard, but generally the compromise of the first and the third one would be adopt. The medical treatment implemented without patient’s commitment is known as arbitrariness medical treatment, in the foreign judicial practice, which shall be investigated for criminal responsibility in mayhem, however, theorists mostly agree that the treatment shall be investigated in compulsory sin for criminal responsibility.