肖志军事件的法学追询——公私法关系论题的—个引子

多数学者认为肖志军拒签事件属于极端个案,不能说明法制不健全。其实,该案反映出我们的制度设计存在严重的问题,其要害在于公法规则在医患双方关系中不适当地设定了患者家属的主体地位与决定权。这种规定在理论上造成逻辑悖谬,在实践中不仅不必要,而且可能造成与立法预期相反的效果。在特定条件之下,取消患者家属的决定权,解除对医院紧急救治行为的强制禁止,则类似问题可迎刃而解。肖志军事件中所出现的问题其实是国家出于政策管制的需要而不适当地介入私法关系所导致的后果,它反映出我国公私法关系理论亟待深入研究。

A Study of Xiao Zhijun Case from the Perspective of Public and Private Law

Most scholars in China hold that the Xiao Zhijun Case is an extremely particular one, which is incapable of telling the imperfect of our today＇ s law system. Nevertheless, this paper maintains that Xiao＇ s case has demonstrated a severe problem in system design, and the key point consists in that our public law has inappropriately established the patient＇ s family members as dominant party and possessing a say. Therefore, the present study will present evidence that rules of our law in this perspective bring about logical absurdity in theory, and in practice it is unnecessary and probably results in unexpected effect. Under certain circumstances, this sort of headaches could be resolved completely once the patient＇ s family members＇ decision right and the obligatory prohibition of hospitals for emergent treat are cancelled. In fact, problems in Xiao Zhijun Case are caused by nation＇ s improper intervention into private law because of the necessity of national policy control, which calls for in-depth study of the relationship between our public and private law.