의사의 범죄에 대해서 형법에 특별히 규정하고 있는 나라는 그리 많지 않다. 그러나 인신범죄로 규정한 업무상 과실로 크게 다치거나 죽는다는 법률 조항은 의사도 예외가 될 수 없다. 예를 들어, 1871년 독일 형법전 제222조에 규정: 과실로 사람이 죽게 되는 경우, 3년 이하의 금고에 처한다. 직업, 영업상의 부주의로 사람이 죽게 된 경우는 형법을 가중 적용하여 5년 이하의 금고에 처해야 한다. 일본 현행 형법전 제211조 규정: 필요한 주의를 태만해서 사람이 죽게 되면 5년 이하의 노역, 또는 100만원 이하의 벌금에 처한다. 중과실로 사람이 죽게 되는 것도 이와 같이 처리한다. 한국 현행 형법전 제268조 규정: 업무상 과실이나 중과실로 사람이 죽게 되면 5년 이하의 금고나 2000만원 이하의 벌금에 처한다. 위 국가와 달리, 중국 형법은 의사의 의료과실로 인한 의료사고죄에 대해 직접적이면서도 명확하게 규정했다. 중국 형법 제335조 규정: 의무요원이 주의를 다하지 않아서 환자를 사망하게 하거나 심각하게 환자의 인신 건강에 손해를 주면 3년 이하의 유기 징역이나 노역에 처한다. 이 법률 조항에 따라 중국 형법 이론과 실무계에서는 일반적으로 의료사고죄는 의무요원이 주의를 다하지 않아서 진찰하고 있는 환자가 사망하거나 환자의 인신 건강에 심각한 손해를 주는 행위에 한계를 정한다. 의료과정의 복잡성, 침입성은 의료행위의 위험성과 관련된다. 과학기술의 발전에 따라 많은 신 의료 설비, 의료기술, 의료수단은 의료진단 중에 사용된다. 사람들의 건강수요를 만족시키면서 의료행위의 위험 요소가 많아지고 있고, 그로 인한 의료손해도 자주 나타난다. 환자의 생명과 건강을 보호하기 위해 법률에 의무요원의 행위규범을 규제하는 규정과 요구가 필요하다. 중국 형법이 의료사고죄를 설치한 이유가 바로 여기에 있다. 그러나 의료과실 범죄의 형법규범은 장점과 단점의 양면성을 가지고 있다. 그것은 의무요원의 책임심이 강화되고 환자의 이익을 보호하는 반면에 무거운 처벌규정으로 인해 때문에 의무요원의 열의를 손상 시킬 수도 있다. 그래서 중국 형법은 일본, 한국과 달리 단독적으로 의료사고죄를 규정하고 가벼운 형벌을 설치한 방식은 당연히 의미가 있다고 할 수 있다. 그러나 법률 조항에는 부족한 점도 있는데, 그 예로 범죄 구성 요건의 규정, 법정형(法定刑)의 설치 등 문제는 아직도 재검토를 필요로 한다.
Different from the criminal law of Japan and Korea, Chinese criminal law directly and clearly specifies the crime of medical accident caused by physician’s negligent act. According to the article of 335thin Chinese criminal law, the crime of medical accident is defined as the behavior which caused the death or serious injury to the victim due to the severe irresponsibility of the physician. Firstly, analysis of constitution of medical malpractice crime Specific provisions of Chinese criminal law demands the establishment of every specific crime meets subjective elements and objective elements which contains four basic elements: criminal object, objective aspect of crime, subject of a crime and subjective aspect of a crime. So does the crime of medical accident. The first, the object of the crime Chinese criminal law commonly believe that criminal object means the social relationships which protected by criminal law is assaulted and threatened by commission of offence. Although Chinese scholars still hold arguments for criminal object of medical accident, the current view that believes the object of this crime is the nation’s management order towards the medical practice and the rights of client’s life and health. The mange and managed legal relationship of medical management between nation and physician, the serve and served legal relationship of medical service between physician and clients. This two aspects constitutes the nation’s manage order towards medical practice. The second, objective aspect of the crime Objective aspect of crime means the criminal law stipulates and explains the feature of objectively external facts that the social relationship protected by criminal law causes damage by behavior. Objective aspect of the crime of medical accident, for the sever irresponsibility of doer which caused clients die or serious damage the health of clients. One, the identification of serious irresponsibility Serious irresponsibility means the physician violates medical regulations or routine of nursing care in every medical link, they default or incorrect perform the responsibility of the nursing care. The medical regulation and routine of nursing care are not only can be written but also convention which is conventional and obeyed by physician in practice. For how to understand the “serious” of “serious irresponsibility”, it’s usually judge the quality of the behavior from the result and subjective state of mind in practice. Two, the criterion for judgment of serious damage the health of clients The constitutional essential element of the crime is the harmful results that the physician causes the death or serious damage to the health of clients. As for what is serious damage to the health of the clients, the criminal law doesn’t give clear explanation and the educational circles have different viewpoints. The scholars start a series of discussions and form the different views of medical criteria, criminal criteria and standard of administrative law. There is no unified view so far. Three, the identification of causal relationship Establishment of the crime of medical accident, there must have casual relationships between violation of medical regulation and death or health serious damage. For the definition of the casual relationship of medical malpractice crime, Chinese scholars have lots of arguments. Some determine the causal relationship should be positive causal relationship in medical malpractice crime. That is the internal, inevitable and in conformity with the law’s casual relationship between medical behavior and clients. For the specialty of medical malpractice crime, some scholars believe we should make a concrete analysis of each specific question and support the application of causal relationship of epidemiology. Also many other scholars advocate we can analyze the responsibility of the physician with the help of the degree of medical fault participation. They propose to draw on the experience of five grade method in medical damage compensation cases to judge the participation of medical fault in medical damage case. Therefore, we can definite the causal relationship between medical fault and damage result. The third, subject of the crime The subject of crime means the implement behavior of damaging the society and the nature man and unit which should responsible for the action. According to the article of 335th, the subject of medical malpractice crime is the special subject, which is physician. The medical institution can’t be the subject of this crime. The so-called physician is the person, who is trained by medical colleges or departments at various levels, passes the examination and approved by public health administration, qualified as a doctor and engages in medical service work in practice. As for the medical support crew and medical administration staff belong to the physicians of this crime or not, most scholars don’t agree to put them into the scope of the subject of the crime. With regard to trainee of the physician can be the subject of the medical malpractice crime or not, the law has no clear explanation. Chinese scholars have different views, the strongest view is the trainee different from the formal physician and trainee can’t do the medical behavior or assistant work of diagnosis independently. They must guide by the qualified physician and engage with their medical behavior suitable for their major. Usually, the physician should fully responsible for the trainee. The fourth, subjective aspect of the crime The subjective aspect of a crime means the state of mind the subject of the crime hold for their own behavior and harmful social result. It concludes offence (intentionally or negligence), criminal purpose, criminal motive and so on. According to the rule of criminal law, the subjective fault of doer in medical malpractice crime is negligence, which contains careless and inadvertent negligence and negligence with undue assumption. Duty of care is the premise of the establishment of negligence. Attention ability is the condition of foundation of negligence. Combinations of them make the duty of care become possible. The basis of the duty of care in medical negligence concludes three aspects: First, the duty of care of health law and regulations; second, the duty of care of routine of nursing care; third, the duty of care of medical literature. The judgment criteria of doer have duty of care or not in medical malpractice crime, there exists three different opinions: first is subjectivism, second is objectivism, and third is unified subjective and objective theory. Currently most of the scholars support the third theory. Secondly, the differences among crime of medical accident, crime of negligent homicide and crime of negligent serious injury First, the content of the subjective negligence is different. The negligence in medical malpractice crime is professional negligence; it violates the duty of care in the process of medical diagnosis. While the fault of crime of negligent homicide and crime of negligent serious injury should only be ordinary negligence. Most are general negligence in daily life. Second, the pattern of manifestation is different in objective aspects. Objective aspects of medical malpractice crime shows serious irresponsibility, violates rules and regulations or the routine of nursing care in the diagnosis work. The objective aspect of crime of negligent homicide and crime of negligent serious injury shows lacking of focus to other’s health and life in daily life. Making others die or damage seriously due to action or forbearance. Third, subject of the crime is different. The subject of medical malpractice crime should be physician while the subject of fault of crime of negligent homicide and crime of negligent serious injury can be the nature person who own criminal liability and reach the age of 16. Fourth, the legal interest assaulted is different. The medical malpractice crime not only assault other people’s life or health, but also the management order of nations towards medical practice. However, crime of negligent homicide and crime of negligent serious injury only injure the rights of other’s life and health. In addition, compares with Japanese and Korean criminal law, put the medical malpractice crime into professional negligence, Chinese criminal law sets the legislative mode of medical malpractice crime independently is relatively rational. First of all, the legislative mode of Chinese criminal law is direct and clear. Next, the medical behavior belongs to the highly specialized technical field, which is unusual. It’s not proper to apply medical negligence the same statutory sentence as others negligence. Thirdly, the problems in legislation of crime of medical accident The first, essence of crime regulation is not clear What is serious irresponsibility and what is serious damage the health of clients are both lack of clear definition. This makes the constitution of the crime lost its constancy and range of function which cause the disputes in theoretical research, even the chaos of medical malpractice crime in juridical practice. The second, the category of punishment of statutory sentence is singleness Chinese current criminal law stipulates the statutory sentence of medical malpractice crime fixed-term imprisonment of not more than three years or detention. They both belong to the short-term freedom penalty. The statutory sentence’s category of punishment is singleness which will lead the selective choice of penalty of specific case is less and difficult to deal with the complex medical malpractice crime. The third, the extent of statutory sentence is too narrow; the setting of tallest penalty is too low The maximum statutory penalty of crime of negligent homicide has reached seven years fixed-term imprisonment in Chinese criminal law. The extent of the statutory sentence is three to seven years fixed-term imprisonment. When the circumstances of the crime are rather lighter, the sentence won’t more than three year’s fixed-term imprisonment. However, the same as offense of vocational negligence like the traffic accident crime, crime of negligently causing a serious accident, their extent of statutory sentence and maximum statutory penalty are both higher than medical malpractice crime.
