중국 《侵权责任法》상 의료손해책임에 관한 고찰

Liability for Medical Malpractice in Chinese Tort Law

Across the ages and in all countries of the world, medical dispute caused by either medical accident or medical malpractice always exists. “There is dispute where patient is” as it says the relationship between a patient and a medical institution is an inseparable relation. In China the demand for the medical welfare is getting higher as the quality of life becomes improved with rapid economic development. In this context, China stipulated Tort Law of P.R.C in December 2009, which is the world’s only single law. Before the stipulation of the Tort Law, the medical dispute was resolved in pursuant to either General Principles of the Civil Law of P.R.C or Regulations on Resolving Medical Accident. However, the former has no specific regulation on medical dispute, and is composed of abstract and general regulations. Furthermore, the latter has the deficiency in resolving personal action and infringement of right since its legal feature is administrative regulation. As a result, it was difficult to resolve medical disputes under these systems. It is expected that the stipulation of the Tort Law could improve this legal problem. However, the Article 7 of the Tort Law regulating liability for medial damage cannot solve all of these problems. In other words, some deficiencies and problems in both content and structure of the Law still exist. Consequently, the paper will analyze Chinese medical dispute first. Next, it will discuss how the Tort Law is applied in favor. Finally, it will examine the problems in the application of the Law.