海峽兩岸醫(yī)療糾紛處理機制比較研究
發(fā)布時間：2019-04-24 20:30
【摘要】：隨著深化醫(yī)療改革的推進和法治國家建設的完善,人們的法律意識不斷提高,對醫(yī)療品質有了更高的要求,但由于醫(yī)療糾紛的處理機制還不完善,因此醫(yī)患矛盾愈演愈烈�？v觀近幾年的數(shù)據(jù),醫(yī)療糾紛案件每年都呈現(xiàn)增長的趨勢,給醫(yī)療機構、患者、法院、調解機構、衛(wèi)生部門造成了巨大的壓力。海峽兩岸本是同根同源,具有相同的歷史背景和文化底蘊,近年來海峽兩岸不斷促進經(jīng)濟往來和文化交流,更讓我們我認識到在海峽的對岸也有相似的醫(yī)患矛盾問題,雖然海峽兩岸司法制度有所不同,但在全球化大背景下,海峽兩岸更應該加深了解、取長補短,完善醫(yī)療糾紛解決機制,緩解醫(yī)患矛盾,促進和諧社會的發(fā)展。本文通過分析海峽兩岸的醫(yī)療糾紛發(fā)展現(xiàn)狀,對比分析海峽兩岸非訴訟解決機制、民事解決機制、刑事解決機制中的核心問題,針對海峽兩岸不同的立法精神和解決方式提出完善建議,希望海峽兩岸在糾紛的處理方式上能取長補短,完善海峽兩岸的糾紛處理機制,緩解醫(yī)患矛盾。本文分為四個部分:第一部分分析了海峽兩岸醫(yī)療糾紛發(fā)生的原因和特點以及海峽兩岸醫(yī)療糾紛訴訟和非訴訟的現(xiàn)狀,主要理清了海峽兩岸醫(yī)療糾紛現(xiàn)狀的異同。第二部分分析了海峽兩岸醫(yī)患法律關系的特點,對比了海峽兩岸在醫(yī)療糾紛中對基礎醫(yī)患法律關系的不同處理。第三部分闡述了ADR制度引進的意義、功能和特點,進一步分析ADR制度在大陸的適用情況,比較了大陸和臺灣ADR解決模式在實際應用中的困境,對大陸發(fā)展改革ADR解決模式提出了幾點建議。第四部分基于海峽兩岸民事法律同是受到德、日等大陸法系國家的影響,海峽兩岸在處理民事醫(yī)療過失的方式上具有很大的相似性。首先具體分析了海峽兩岸民事訴訟處理的相關政策,其次,針對海峽兩岸在民事訴訟處理中的重點問題——民事舉證責任的轉換,對比了海峽兩岸不同的立法精神,回顧了大陸舉證責任的發(fā)展,介紹了大陸已經(jīng)逐步建立起的多元化舉證責任體系。而海峽對岸的臺灣雖然已經(jīng)逐步發(fā)展出舉證責任緩和學說但還沒有建立起完整統(tǒng)一的舉證責任制度,大陸的實踐經(jīng)驗值得臺灣參考和借鑒。第五部分分析了海峽兩岸醫(yī)療糾紛刑事訴訟模式。首先簡要介紹了海峽兩岸的醫(yī)療糾紛刑事理念,其次對醫(yī)療刑事訴訟的重點問題——醫(yī)療糾紛刑事過失的判斷、認定和歸責進行了分析,最后本文認為大陸在醫(yī)療刑事過失的認定和歸責上具相當?shù)暮侠硇?而臺灣對醫(yī)療刑事過失的處罰過于嚴苛,醫(yī)療刑事犯罪率高,不利于緩解醫(yī)患矛盾,促進醫(yī)學科學發(fā)展。
[Abstract]:With the deepening of medical reform and the improvement of the construction of a country ruled by law, people's legal awareness has been constantly improved, and there is a higher demand for medical quality. However, due to the imperfect handling mechanism of medical disputes, the contradiction between doctors and patients is becoming more and more serious. Looking at the data of recent years, medical dispute cases show an increasing trend every year, causing great pressure on medical institutions, patients, courts, mediation agencies and health departments. The two sides of the Taiwan Strait have the same origin, have the same historical background and cultural heritage. In recent years, the two sides of the Taiwan Strait have continuously promoted economic exchanges and cultural exchanges, and even more let us and I realize that there are also similar problems of doctor-patient contradiction on the other side of the Strait. Although the judicial system on both sides of the Taiwan Strait is different, under the background of globalization, the two sides of the Taiwan Strait should deepen their understanding, learn from each other's weaknesses, perfect the mechanism of resolving medical disputes, ease the conflicts between doctors and patients, and promote the development of a harmonious society. Through the analysis of the current situation of medical dispute development on both sides of the Taiwan Strait, this paper compares and analyzes the core issues in the non-litigation settlement mechanism, civil settlement mechanism and criminal settlement mechanism on both sides of the Taiwan Strait. In view of the different legislative spirit and settlement methods on both sides of the Taiwan Straits, this paper puts forward some suggestions on how to solve disputes between the two sides of the Taiwan Straits. This paper is divided into four parts: the first part analyzes the causes and characteristics of medical disputes on both sides of the Taiwan Straits and the current situation of litigation and non-litigation of medical disputes on both sides of the Taiwan Strait, and clarifies the similarities and differences of medical disputes between the two sides of the Taiwan Strait. The second part analyzes the characteristics of the legal relationship between doctors and patients on both sides of the Taiwan Strait, and compares the different treatment of the legal relationship between basic doctors and patients in medical disputes between the two sides of the Taiwan Straits. The third part expounds the significance, function and characteristics of the introduction of the ADR system, further analyzes the application of the ADR system in the mainland, and compares the dilemma of the solution mode of the ADR between the mainland and Taiwan in the practical application. This paper puts forward some suggestions on the development and reform of mainland China's ADR solution model. The fourth part is based on the fact that civil law on both sides of the Taiwan Strait is influenced by Germany, Japan and other countries of civil law system, and the ways of dealing with civil medical negligence are very similar between the two sides of the Taiwan Straits. First of all, it specifically analyzes the relevant policies of handling civil litigation on both sides of the Taiwan Straits. Secondly, in view of the key issue in handling civil litigation on both sides of the Taiwan Strait-the conversion of civil burden of proof, it contrasts the different legislative spirit between the two sides of the Taiwan Strait. This paper reviews the development of burden of proof in mainland China and introduces the pluralistic burden of proof system which has been gradually established in mainland China. Although Taiwan across the Taiwan Strait has gradually developed the theory of burden of proof mitigation, it has not yet established a complete and unified burden of proof system, and the practical experience of the mainland is worthy of reference and reference for Taiwan. The fifth part analyzes the criminal litigation mode of medical disputes between the two sides of the Taiwan Straits. Firstly, the author briefly introduces the criminal concept of medical disputes on both sides of the Taiwan Straits, and then analyzes the judgment, identification and imputation of the criminal negligence of medical disputes, which is the key issue of medical criminal litigation. Finally, this paper argues that the identification and imputation of medical criminal negligence in mainland China is quite reasonable, while the punishment of medical criminal negligence in Taiwan is too severe and the criminal crime rate of medical treatment is high, which is not conducive to alleviating the contradiction between doctors and patients and promoting the development of medical science.
【學位授予單位】：江西師范大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D922.16
本文編號：2464761
[Abstract]:With the deepening of medical reform and the improvement of the construction of a country ruled by law, people's legal awareness has been constantly improved, and there is a higher demand for medical quality. However, due to the imperfect handling mechanism of medical disputes, the contradiction between doctors and patients is becoming more and more serious. Looking at the data of recent years, medical dispute cases show an increasing trend every year, causing great pressure on medical institutions, patients, courts, mediation agencies and health departments. The two sides of the Taiwan Strait have the same origin, have the same historical background and cultural heritage. In recent years, the two sides of the Taiwan Strait have continuously promoted economic exchanges and cultural exchanges, and even more let us and I realize that there are also similar problems of doctor-patient contradiction on the other side of the Strait. Although the judicial system on both sides of the Taiwan Strait is different, under the background of globalization, the two sides of the Taiwan Strait should deepen their understanding, learn from each other's weaknesses, perfect the mechanism of resolving medical disputes, ease the conflicts between doctors and patients, and promote the development of a harmonious society. Through the analysis of the current situation of medical dispute development on both sides of the Taiwan Strait, this paper compares and analyzes the core issues in the non-litigation settlement mechanism, civil settlement mechanism and criminal settlement mechanism on both sides of the Taiwan Strait. In view of the different legislative spirit and settlement methods on both sides of the Taiwan Straits, this paper puts forward some suggestions on how to solve disputes between the two sides of the Taiwan Straits. This paper is divided into four parts: the first part analyzes the causes and characteristics of medical disputes on both sides of the Taiwan Straits and the current situation of litigation and non-litigation of medical disputes on both sides of the Taiwan Strait, and clarifies the similarities and differences of medical disputes between the two sides of the Taiwan Strait. The second part analyzes the characteristics of the legal relationship between doctors and patients on both sides of the Taiwan Strait, and compares the different treatment of the legal relationship between basic doctors and patients in medical disputes between the two sides of the Taiwan Straits. The third part expounds the significance, function and characteristics of the introduction of the ADR system, further analyzes the application of the ADR system in the mainland, and compares the dilemma of the solution mode of the ADR between the mainland and Taiwan in the practical application. This paper puts forward some suggestions on the development and reform of mainland China's ADR solution model. The fourth part is based on the fact that civil law on both sides of the Taiwan Strait is influenced by Germany, Japan and other countries of civil law system, and the ways of dealing with civil medical negligence are very similar between the two sides of the Taiwan Straits. First of all, it specifically analyzes the relevant policies of handling civil litigation on both sides of the Taiwan Straits. Secondly, in view of the key issue in handling civil litigation on both sides of the Taiwan Strait-the conversion of civil burden of proof, it contrasts the different legislative spirit between the two sides of the Taiwan Strait. This paper reviews the development of burden of proof in mainland China and introduces the pluralistic burden of proof system which has been gradually established in mainland China. Although Taiwan across the Taiwan Strait has gradually developed the theory of burden of proof mitigation, it has not yet established a complete and unified burden of proof system, and the practical experience of the mainland is worthy of reference and reference for Taiwan. The fifth part analyzes the criminal litigation mode of medical disputes between the two sides of the Taiwan Straits. Firstly, the author briefly introduces the criminal concept of medical disputes on both sides of the Taiwan Straits, and then analyzes the judgment, identification and imputation of the criminal negligence of medical disputes, which is the key issue of medical criminal litigation. Finally, this paper argues that the identification and imputation of medical criminal negligence in mainland China is quite reasonable, while the punishment of medical criminal negligence in Taiwan is too severe and the criminal crime rate of medical treatment is high, which is not conducive to alleviating the contradiction between doctors and patients and promoting the development of medical science.
【學位授予單位】：江西師范大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D922.16
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