日韩医患纠纷非诉讼化解机制及其对中国的启示

Abstract

The social and cultural backgrounds of China, Japan and Korea are similarities. Therefore, there are many and references in social governance. The Japanese Medical Doctors Association has established a system of professional liability insurance, and the association would participate in the mediation if the medical disputes have generated. On the other hand South Korea has established a Medical Dispute Mediation and Arbitration Agency. What’s more, both countries have achieved good dispute resolution effects in the practice of ADR systems and formed a standardized for the medical dispute handling mechanism, so the doctor-patient conflict performance is not very intense. This paper analyzes the successful experience of Japan and South Korea in dealing with medical disputes. Especially the non-litigation method to resolve medical disputes and analyzes the main problems existing in the current medical dispute resolution mechanism and methods in China. This essay found that influenced by the traditional methods, the ADR mechanism in China, Japan and Korea has distinctive differences on its demand, way of formation and mechanism, etc, through the analysis of the formation and development of ADR mechanism in medical disputes. Specifically, ADR mechanism has been massively influenced by its traditional mediation system, which leads to a further transformation from traditional mediation to modern legislation. In Korea, ADR mechanism ‘s development indicates that the pressure of litigation is greatly promoting the special legislation, while in China, the process of adopting ADR mechanism shows that conflicts is pushing the system construction. Therefore, comparing these three countries’ ADR mechanism, China is supposed to improve its ADR mechanism from these four aspects: First, build up and improve the legislation about ADR mechanism and clear the specifications of ADR resolving procedures. Second, set up ADR special institutions to settle extralegal issues authoritatively, professionally and appropriately. Third, improve the supporting mechanism resolving medical disputes outside the litigation so as to establish a smooth channel for resolving medical disputes outside the litigation. Fourth, complete complementary amount regulations to institutionalize the settlement of medical disputes outside the lawsuit. Medical disputes in China, Japan and Korea shows different characteristics. Meanwhile, the promotion, leading agency, resolving procedures and resolving effect of their resolving mechanism outside the litigation also have distinctive differences. It’s necessary to summarize, develop and complete ADR mechanism by clarifying and analyzing why these differences exist based on the comparison and learning from the different features of medical disputes in China, Japan and Korea, which greatly inspires other countries on how to settle medical disputes and further promotes the relationships between doctors and patients.