중국「侵权责任法」상 의료손해의 개념과 유형

Concept and Type of Medical Damage in Chinese Tort Law

Along with economic development, the concerns on the quality of life and health are growing in China. Accordingly, Chinese government stipulated medical related regulations and tried to solve medical disputes. However, the medical related regulations, stipulated as administration law with the purpose of imposing an administrative measure on the medical damages caused by a medical institution, are not effective to solve the liability for the medical damage compensation. The problems occurring under medical related administration law system have been solved as enacting <Tort Law> in December 26th of 2009 dealing with illegal acts(tort) independently. First of all, before the enactment of <Tort Law>, there was dual interpretation problem among administration law, which are <Measure> and <Decision>, on the compensation for damage under the General Principles of Civil Law. The problem stemmed from the conceptual difference of damage between administration law and civil law. Taking into account the problem, the concept of the damage caused by medical accident is homogenized under the Tort Law. As a result, the subject to burden the liability is prescribed by law which gives an advantage over recovering rights and interests of patients. Moreover, the compensation for damage problems under the administration law are complemented once again as subdividing liability for medical damage into liability for medical technical damage , liability for medical ethics , and liability for medical product damage. However, the Tort Law has left room to modification because of using the superfluous provision and the wrong concept about the liability for the medical damage. With this in mind, the article will examine the concept of damage under Chinese Civil Law and the concept of medical damage under the Tort Law first. It will also discuss the concept and type of the liability for the medical damage compensation generally. Hopefully, it will help Korean scholars study Chinese medical law.