医疗事故损害赔偿问题研究(1)(山西大学2004届法律硕士研究生毕业论文)

本文以《医疗事故条例》与民事法律、法规及司法解释的冲突为切入点,首先从医疗事故的构成要件着手分析,将医疗事故界定为“医疗机构及其工作人员在医疗活动中,违反医疗卫生法律、行政法规、部门规章和诊疗护理规范、常规,过错造成患者人身损害的事故”,拓宽了医疗事故的范围,并在此基础上着重强调医疗机构的谨慎注意义务,缩小了医疗事故的免责事由。其次,经过分析认为医疗事故损害赔偿责任的性质是侵权责任与违约责任的竞合,在实践中应根据当事人意思自治原则区别对待,适用不同的归责原则,同时指出了赔偿范围与标准以及医疗事故鉴定的不足,批驳了“不属于医疗事故的,不承担赔偿责任”的错误观点,论证了惩罚性赔偿原则在医疗事故损害赔偿纠纷中适用的可行性,提出了医疗事故网上鉴定的设想。最后为了强化对患者的司法救济,分散医疗机构的风险,消化医疗机构的损失,平衡医患双方的利益冲突,构筑完整的医疗事故损害赔偿体系,对医疗责任保险的保险范围、除外责任提出了自己的看法,同时提出医事法律应借鉴其他法律的相关规定,对医疗责任保险做出强制投保规定的设想。     

Childbearers as rights-bearers: feminist discourse on the rights of aboriginal and non-aboriginal mothers in Australia, 1920–50

Abstract

In the post-suffrage era in Australia, feminists invoked maternalist arguments in support of the idea that mothers were political subjects with rights and they extended their campaigns to press for recognition of the rights of Aboriginal women. This article examines the claim made by post-suffrage feminists that ‘the common status of motherhood’ entailed a range of social, economic and civil rights. They argued in Royal Commissions, election campaigns, and the press that all mothers, working class and middle class, Aboriginal and non-Aboriginal, who wished to retain the custody of their children should have the legal right and economic ability to do so. In New South Wales the campaign culminated in the staging of a play called Whose Child? This article explores some of the tensions between Women's claims as mothers and as independent citizens and the difficulties encountered when feminists attempted to have mothers' rights defined as human rights in the Universal Declaration of Human Rights in 1948.     

Why International Trusteeship Fails: The Politics of External Authority in Areas of Limited Statehood

International trusteeship is widely touted as a solution to the problem of failed states, an extreme form of limited statehood. Current theories of legitimacy and statebuilding suggest that trusteeships should produce more capable states. These theories, however, fail to take into account the self‐interest and political strategies available to trustees and politicians within new states. We pose a more political model of statebuilding by the international community, the trustee, and national politicians that predicts that trusteeship will fail to produce states with greater capacity. We test for the effects of trusteeship on state capacity, measured by service provision, by creating a matched sample of countries. We find that there is no evidence that states under trusteeship develop greater capacity leading to better provision of public goods than comparable states not under trusteeship. Would‐be statebuilders must be more aware of the political incentives of all parties involved in the process.     

Women and citizenship

Barbara Sullivan and Gillian Whitehouse (eds), Gender, Politics & Citizenship in the 1990s (University of New South Wales Press) Sydney, 1996.

Jan Jindy Pettman, Worlding Women: A Feminist International Politics (Allen & Unwin) Sydney, 1996.     

Finding stability in change

Asia is facing a period of great change as we head toward the twenty‐first century. It is vitally important that Asian nations find stability within this change, not simply for its own sake, but in order to increase the prosperity and well‐being of citizens, says Anthony Lake, former National Security Advisor for President Clinton. He argues that common, globally‐accepted “rules of the road” must be adopted in order to ensure a peaceful stability in the Asia‐Pacific region and in the world. This is a revised version of a speech Lake gave to the Symposium of the Global Forum on 19 September 1997 at International House of Japan in Tokyo.