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未成年人医疗同意权行使制度直接关涉未成年人生命权及身体健康权的保护,但我国《侵权责任法》对此却无任何规定,形成立法漏洞,亟需弥补。应在结合我国现实国情的基础上,借鉴其他国家和地区相关立法例的有益经验,规定不满14周岁的未成年人以及因智力障碍不能理解医疗行为性质和后果的未成年人无医疗同意能力,其医疗同意权由其父母或监护人代为行使;其他年满14周岁、智力正常的未成年人具有部分医疗同意能力,对风险较小的医疗行为可自行行使同意权,对风险较大的医疗行为其本人的决定需得到父母或监护人的同意。父母或监护人须按照符合未成年人最大利益原则代行医疗同意权,否则相关个人或组织可以提请法院审查和作出决定。
The system of exercising the medical consent of minors is directly related to the protection of the right to life and the right of physical health of minors. However, there is no stipulation in this Law of Torts of Torts in our country, which creates the loopholes in the legislation and urgently needs to be remedied. Based on the actual conditions of our country, we should learn from the beneficial experiences of the relevant legislative cases in other countries and regions, stipulate that minors under 14 years of age and minors who can not understand the nature and consequences of medical behaviors due to mental retardation should not have the medical consent ability, Their medical consent is exercised on behalf of their parents or guardians; other minors who are over 14 years of age and have normal mental capacity have some medical consent capabilities, may exercise their right of consent for less risky medical behaviors themselves, Their own decision requires the consent of their parents or guardians. Parents or guardians shall act on their behalf in accordance with the principle of the best interests of minors, or the relevant individuals or organizations may bring the case to the court for examination and make a decision.