Recently, a series of papers on the commentary of the Civil Code written by Zeng Jian of our institute were published in the Research on the Rule of Law and Jingchu Jurisprudence respectively. Commentary on Article 1221 of the Civil Code ("the prevailing level of medical care" as the standard of duty of care) was published in Research on the Rule of Law, Issue 3, 2024, and Commentary on Article 1003 of the Civil Code (bodily rights) was published in Jingchu Law, Issue 5, 2024. Research on the Rule of Law is a Chinese journal organized by the Law Society of Zhejiang Province, selected as a source journal of the extended version of CSSCI and a Chinese core journal. Jingchu Jurisprudence is a key publication organized by the Hubei Provincial Law Society.

Commentary on Article 1221 of the Civil Code ("prevailing level of medical care" as a criterion for the duty of care)

Abstract: Article 1221 of the Civil Code establishes liability for damage caused by medical technology, the core concept of which is the "prevailing level of medical care". This concept has been controversial since it first appeared in Article 57 of the Tort Liability Law. The experience of Japan, Germany and common law suggests that "prevailing level of medical care" should be understood from the perspective of a general duty of care. For the judgment of the "prevailing level of medical care", it is necessary to correctly recognize the difference in the effectiveness of the diagnostic and treatment norms, mandatory diagnostic and treatment norms itself is the duty of care, and authoritative and referential diagnostic and treatment norms are only an important basis for judging the duty of care in medical treatment, not the only criterion. When examining the "level of medical care at the time", the general theory of fault should be followed, and the main steps of judgment can be divided into the following order: correctly recognize the role of diagnostic and treatment norms, respect the minority viewpoints, improve the requirements of attention for the prevention and avoidance of risk, take into account the impact of the differences in the allocation of medical resources, and cautiously examine the physician's discretionary power.

Keywords: medical personnel; medical technology damage; duty to treat; prevailing level of medical care

Commentary on Article 1003 of the Civil Code (Right to Body)

Abstract: Article 1003 of the Civil Code defines the physical rights of natural persons. The legislative process shows that the drafters intended to include freedom of movement within the scope of bodily rights. Academics have different views on this. In terms of the hierarchy of rights, if the right to freedom of movement is included in the right to the body, the status of the right to freedom of movement will inevitably be over-exaggerated, resulting in systemic contradictions and application problems. The appropriate solution is to interpret "freedom of movement" in line with the connotation of the right to the body, and to limit the freedom of movement in the broad sense to the freedom of movement in the narrow sense of dominating the components of the body. The negative power of the right to the body lies in the preservation of the integrity of the body, and may cover cells, tissues, embryos and organs that have been removed from the body, subjective and objective conditions such as the likelihood of their reintegration into the body of the donor, the subjective will of the donor, and the limitations imposed by the norms of the law and medical ethics, etc., must be taken into account. The positive power of the right to the body lies in the freedom of action that governs the components of the body, including the voluntary acceptance of diagnostic and therapeutic services, damage to the body in pursuit of quality of life, and voluntary donation. Among these, the use of assisted human reproductive technology is the topic of greatest concern.

Keywords: bodily rights; right to freedom of movement; integral parts of the human body; assisted reproduction