医疗损害赔偿责任性质的再认识  

A Re-discussion on the Nature of the Civil Liability for Medical Damages

作　　者：李潇[1] 

机构地区：[1]广西师范大学职业技术师范学院,广西桂林541004

出　　处：《梧州学院学报》2015年第4期39-44,共6页Journal of Wuzhou University

摘　　要：文章认为医疗损害赔偿责任的性质应为违约责任与侵权责任竞合说,并认为医疗损害赔偿责任之所以由违约责任转化为侵权责任,其法理基础有法律对人的尊严与价值的尊重以及对人的生命健康的关怀,仅在侵权责任中存在的精神损害赔偿及惩罚性损害赔偿,以及合同法没有对医疗合同的规定,这使得在我国产生了医疗损害赔偿按照侵权责任进行处理的传统与习惯。同时文章也认为违约责任在医疗损害赔偿责任中在某些特殊医疗合同、时效期间、第三人过错及责任承担方式方面具有其独特的价值。This paper argues that the nature of liability for medical damages shall fall in the overlap theory involving the liability for breach of contract and the liability for tort. It also holds that, because of the legal basis that laws always show respect for people’ s dignity and worth as well as consideration for people’ s lives and health, the liability for medical damages should be converted from liability for breach of contract into liability for tort. In addition, due to the fact that compensation to mental damages and punitive compensation to damages are included only in the liability for tort and the fact that the existing contractual law is in lack of provisions for medical contract, a customary practice in which liability for medical damages is treated as liability for tort is adopted in our country. Moreover, this paper argues that the liability for breach of contract has its unique value in some aspects of the liability for medical damages, such as special medical contract, aging of contract, fault of the third party and methods of bearing liabilities, etc.

关 键 词：医疗损害 赔偿责任性质 再认识 

分 类 号：D923[政治法律—民商法学]