归因与归责:刑事医疗诉讼中鉴定机构与法院的角色定位

在刑事医疗诉讼中, 鉴定机构和法院的关系应当是刑法上“归因”与“归责”的关系。归因是因果关系的判断, 是事实判断;归责是刑事责任的判断, 是价值判断。中国刑法中所使用的“归责”不同于大陆法系三阶层犯罪论体系中使用的“归责”, 区分归因与归责对于准确界定鉴定机构和法院之间的功能与角色以及医疗诉讼的处理具有重要意义。

Attribution and Liability:the Role and Position of Medical Identification Mechanism and the Court in the Criminal Litigation

In the criminal medical litigation, the relationship between appraisal mechanism and the court should be that of the “attribution” and “imputation” in criminal law. Attribution is the judgment of causality, and is factual judgments; imputation is of criminal liability judgment, and is value judgment. The criminal law in China which uses “attribution” is different from continental law system where three classes crime constitution theory is used in the “attribution”. To distinguish between attribution and imputation in order to accurately define the role and function of the appraisal mechanism and the court as well as the treatment of medical litigation has important significance.