医疗机构保密义务研究
发布时间：2019-06-19 10:10
【摘要】：随着广大人民群众法律意识的增强，人们在接受医疗服务时，除了关注病情如何得到治疗外，也开始关心自己的权利如何得到保护的问题。其中，对自己隐私权的保护更是为人们所重视。各国为了保护患者的隐私权，通常将医疗机构的保密义务规定为一项法定义务。我国也通过法律规定，将医疗机构的保密义务上升为法律义务。同时，我们也要看到，在国外曾出现过患者隐私权与其他权益相冲突的判例。若过于苛责医疗机构的承担保密责任，可能也会带来一些社会问题。我国有关保密义务的内容在法律上的规定在构成要件，保密信息的范围，是否存在例外情形等方面存在问题，以致在实践操作中不利于医疗机构与患者纠纷的解决。 本文共分为三部分。第一部分是我国医疗机构泄露个人信息的现象及立法现状分析。在此部分中将列举医疗实践中医疗机构泄露患者信息的实例，分析医疗机构泄露患者个人信息行为的法律性质，即对保密义务的违反。论证规定医疗机构承担保密义务的必要性，并探讨我国现行法律对医疗机构保密义务的规定以及分析现行规定所存在的问题，即构成要件及责任承担规定不明确，例外情形规定不详尽。 第二部分是医疗机构违反保密义务的构成要件及责任承担。此部分是本文的理论部分，分析医疗机构违反保密义务侵权责任的构成要件，并探讨该侵权责任的承担问题。首先，提出在现行法律制度下，可以依据侵权法、合同法对医疗机构违反保密义务进行民法责任的追究，但是保护患者利益而言，笔者认为，在救济患者权利而言，，侵权责任更有利，因此本文重点探讨违反保密义务的侵权责任。然后，通过侵权责任构成要件一般理论的介绍引出医疗机构保密的信息应包括：个人信息，医疗信息，治疗过程，依据患者请求。最后经论证明确医疗机构违反保密义务侵权责任的承担主体应为医疗机构。 第三部分是医疗机构违反保密义务的例外。此部分论述医疗机构保密义务的例外情形。结合外国立法及判例，论述我国应当对医疗机构违反保密义务的例外情形进行规定，并提出我国应当将以下医疗机构泄露患者信息的情形视为违反保密义务的例外情形：患者同意、公共性利益、为了保护患者自身的利益以及不可抗力。
[Abstract]:With the enhancement of the legal consciousness of the broad masses of the people, when receiving medical services, people not only pay attention to how to get treatment, but also begin to pay attention to how to protect their rights. Among them, the protection of their right to privacy is paid more attention to. In order to protect the privacy of patients, countries usually make the obligation of confidentiality of medical institutions a legal obligation. Our country also through the law stipulation, the medical institution confidentiality duty rises to the legal obligation. At the same time, we should also see that there has been a conflict between patients' privacy and other rights and interests in foreign countries. If medical institutions are too critical of confidentiality responsibilities, there may also be some social problems. There are some problems in the legal provisions of the obligation of confidentiality in our country, such as the constituent elements, the scope of confidential information, whether there are exceptions and so on, so that it is not conducive to the settlement of disputes between medical institutions and patients in practice. This paper is divided into three parts. The first part is the analysis of the phenomenon and legislative situation of medical institutions leaking personal information in our country. In this part, the examples of medical institutions leaking patient information in medical practice will be listed, and the legal nature of the disclosure of patients' personal information by medical institutions will be analyzed, that is, the violation of the obligation of confidentiality. This paper demonstrates the necessity of prescribing the obligation of confidentiality in medical institutions, probes into the provisions of the current law of our country on the obligation of confidentiality of medical institutions, and analyzes the problems existing in the current provisions, that is, the provisions on constituent elements and liability are not clear, and the provisions on exceptions are not detailed. The second part is the constituent elements and responsibility of medical institutions violating the obligation of confidentiality. This part is the theoretical part of this paper, which analyzes the constituent elements of tort liability of medical institutions in violation of confidentiality obligations, and discusses the assumption of tort liability. First of all, under the current legal system, we can investigate the civil law liability of medical institutions for violating the obligation of confidentiality according to the tort law, but as far as the protection of the interests of patients is concerned, the author believes that the tort liability is more favorable in terms of the rights of relief patients, so this paper focuses on the tort liability for violating the obligation of confidentiality. Then, through the introduction of the general theory of the constituent elements of tort liability, the confidential information of medical institutions should include: personal information, medical information, treatment process, according to the patient's request. Finally, it is proved that the main body of tort liability of medical institutions in violation of confidentiality obligations should be medical institutions. The third part is the exception of medical institutions violating the obligation of confidentiality. This part discusses the exceptions to the confidentiality obligation of medical institutions. Combined with foreign legislation and cases, this paper discusses that our country should stipulate the exception of breach of confidentiality obligation by medical institutions, and puts forward that the following cases of disclosure of patient information by medical institutions should be regarded as exceptions to breach of confidentiality obligation: patient consent, public interests, in order to protect the interests of patients and force majeure.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.16;D923
本文编号：2502271
[Abstract]:With the enhancement of the legal consciousness of the broad masses of the people, when receiving medical services, people not only pay attention to how to get treatment, but also begin to pay attention to how to protect their rights. Among them, the protection of their right to privacy is paid more attention to. In order to protect the privacy of patients, countries usually make the obligation of confidentiality of medical institutions a legal obligation. Our country also through the law stipulation, the medical institution confidentiality duty rises to the legal obligation. At the same time, we should also see that there has been a conflict between patients' privacy and other rights and interests in foreign countries. If medical institutions are too critical of confidentiality responsibilities, there may also be some social problems. There are some problems in the legal provisions of the obligation of confidentiality in our country, such as the constituent elements, the scope of confidential information, whether there are exceptions and so on, so that it is not conducive to the settlement of disputes between medical institutions and patients in practice. This paper is divided into three parts. The first part is the analysis of the phenomenon and legislative situation of medical institutions leaking personal information in our country. In this part, the examples of medical institutions leaking patient information in medical practice will be listed, and the legal nature of the disclosure of patients' personal information by medical institutions will be analyzed, that is, the violation of the obligation of confidentiality. This paper demonstrates the necessity of prescribing the obligation of confidentiality in medical institutions, probes into the provisions of the current law of our country on the obligation of confidentiality of medical institutions, and analyzes the problems existing in the current provisions, that is, the provisions on constituent elements and liability are not clear, and the provisions on exceptions are not detailed. The second part is the constituent elements and responsibility of medical institutions violating the obligation of confidentiality. This part is the theoretical part of this paper, which analyzes the constituent elements of tort liability of medical institutions in violation of confidentiality obligations, and discusses the assumption of tort liability. First of all, under the current legal system, we can investigate the civil law liability of medical institutions for violating the obligation of confidentiality according to the tort law, but as far as the protection of the interests of patients is concerned, the author believes that the tort liability is more favorable in terms of the rights of relief patients, so this paper focuses on the tort liability for violating the obligation of confidentiality. Then, through the introduction of the general theory of the constituent elements of tort liability, the confidential information of medical institutions should include: personal information, medical information, treatment process, according to the patient's request. Finally, it is proved that the main body of tort liability of medical institutions in violation of confidentiality obligations should be medical institutions. The third part is the exception of medical institutions violating the obligation of confidentiality. This part discusses the exceptions to the confidentiality obligation of medical institutions. Combined with foreign legislation and cases, this paper discusses that our country should stipulate the exception of breach of confidentiality obligation by medical institutions, and puts forward that the following cases of disclosure of patient information by medical institutions should be regarded as exceptions to breach of confidentiality obligation: patient consent, public interests, in order to protect the interests of patients and force majeure.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.16;D923
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相关期刊论文 前3条
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