试析医患信义关系——以信义义务起源和扩张为进路

Doctor-patient Fiduciary Relationship: An Analysis Based on the Origin and Expansion of Fiduciary Duty

医患信托关系部分地解释了医患之间的信任和托付,但仍然有所不足。中国信托的金融属性更强,用于阐释医患关系不无歧义。从信托的起源看,信托受托人对受益人负有较高的义务,该等义务基于受益人对受托人的高度信任和依赖。信托关系的内核是受托人所负有的信义义务。随着社会的发展,信义义务逐步向信托以外的领域扩展,尤其在当事人之间需高度信赖方能建立关系的领域。对信息、能力具有优势地位的一方课以信义义务,要求该方以另一方利益最大化行事,是信义义务区别于契约关系的关键所在。医患关系也可归入信义关系的一种,医患信义关系能避免医患契约关系和信托关系的固有缺陷,可作为医患关系的属性。

The doctor-patient fiduciary relationship partly explains the trust and commitment between doctors and patients, but it is still insufficient.The financial attribute of fiduciary in China is stronger than that in other places, which will produce ambiguity to interpret the patient-physician relationship with trust relationship. From the origin of trust, the trustee of fiduciary has a higher obligation to the beneficiary, which is based on the beneficiary's high trust and reliance on the trustee. The vital connotation of the trust relationship is the fiduciary duty of the trustee. With the development of society, fiduciary duty has gradually expanded to fields other than trust, especially in the field where a high degree of trust is required to establish a relationship between the parties. The key difference, which between fiduciary duty and contractual relationship, it lies in imposing fiduciary duty on the party who has a dominant position in information and ability and requiring the party to act for the maximization of the interests of the other party. The doctor-patient relationship can also be classified into a fiduciary relationship.The doctor-patient fiduciary relationship conduces to avoid the inherent defects of the doctor-patient contract relationship and trust relationship, and should be an attribute of the doctor-patient relationship.