In determining the infringement of personality rights, special attention should be paid to distinguishing between moral defects and violations of the law

Author: Zhou Yuwen Fujian Zhou Chi Law Firm

Source: House of Justice

It is often said that the law is the minimum requirement for people and the bottom line of being a person. That is to say, although there is no violation of the law and cannot be evaluated and punished by the law, it does not mean that the person's actions or behaviors are appropriate, let alone should be imitated and praised, but should be criticized or condemned, that is, they may be violated, or that their practices are inappropriate from a moral point of view. For example, Zhang San (male) and Li Si (female) were neighbors and playmates since childhood, and more than ten years later at a friend's wedding banquet got together by chance. For example, Wang Wu and Zhao Liu are colleagues in the same unit, and the two usually have close contact, and Wang Wu is present to help Zhao Liu's family if there is any major or minor matter; Zhao Liu's parents' birthday and Zhao Liu's marriage, Wang Wu all help Zhang Luo and come to congratulate him with gifts. But when Wang Wu got married, although Zhao Liu was informed and he was welcomed, Zhao Liu still did not show up and did not congratulate him. I am afraid that the above-mentioned practices of Zhang San and Zhao Liu, or their actions, may hardly be said to be illegal, but from a moral point of view, the practices are obviously flawed and should be criticized or condemned. That is to say, moral defects or immoral and illegal behaviors are undesirable and inappropriate, but they are, after all, problems of two natures, namely: morality to morality, and law to law. However, in our actual life, some people's actions that are not suitable for others are all left to the judgment of the law, and this should not be. A recent case of a female patient suing a male doctor and his hospital for violating his right to privacy is a case of heated discussion on the Internet.

The basic facts of the case are as follows:

Ms. Liang from Shenzhen went to Shenzhen Grand Anorectal Hospital for gastrointestinal discomfort, and was diagnosed with chronic enteritis by the doctor and received colon hydrotherapy. Colon hydrotherapy is a treatment method that uses automated instruments and the patient's own cooperation. That is, after the patient enters the treatment room, the nurse arranges for the patient to sit in a treatment chair with the instrument, and the nurse inserts the drainage tube into the patient's anus. After that, the nurse sets the time (usually 40 minutes) on the treatment device, explains the problems that the patient should pay attention to when using the treatment device, and gives the patient an electronic bell to tell the patient to ring the bell to call. After that, the nurse exits the treatment room, and the patient receives the treatment alone in the treatment room with the treatment equipment. However, during Ms. Liang's self-treatment, the male doctor who prescribed Ms. Liang to receive colon hydrotherapy suddenly walked into the treatment room.

Ms. Liang complained to the hospital about Zhang's behavior because the intrusion of the male doctor Zhang had violated her privacy and had caused her fear and caused her to suffer from insomnia for several days. After checking the surveillance, the hospital believed that Zhang was performing his duties as a doctor at that time, and there was no fault or infringement. Ms. Liang's diagnosis certificate from the hospital half a month after receiving colon hydrotherapy (the diagnosis certificate of traditional Chinese medicine showed that she suffered from insomnia; Western medicine diagnosed as sleep disorder). Ms. Liang took the surveillance video and the hospital's diagnosis certificate to the court on the grounds that the doctor Zhang and the hospital had violated her privacy and caused serious consequences, and demanded that the hospital compensate her for mental damages of 40,000 yuan.

After hearing the case, the court of first instance held that the doctor's actions were not at fault, that the hospital's spa room was a routine place for treating patients, and that Zhang, as Ms. Liang's attending doctor, had entered and exited the spa room as a normal diagnosis and treatment act, so there was no infringement in this case. Accordingly, the court of first instance rejected Ms. Liang's claim.

Ms. Liang appealed against the first-instance judgment. The court of second instance held that Zhang's visit to the treatment room after learning that Ms. Liang had already received treatment was to perform his duties, and there was no fault or illegality, and it did not constitute an infringement against Ms. Liang. The court of second instance upheld the first-instance judgment, rejected Ms. Liang's appeal, and upheld the original judgment (see Alaska Bao Mays Medicine 2024-04-07 07:30 Anhui).

This case is a tort dispute that arose in the course of a male doctor's diagnosis and treatment of a female patient. It should be said that it is already a matter of common sense that male doctors can examine, including observation, touch, and other private parts of female patients for the needs of diagnosis and treatment. However, it is not possible to specify in detail how to perform specific operations in the process of diagnosis and treatment, such as which relevant parts of the patient can be observed and touched, and the length of time for observation and touching. In the case of Ms. Liang, for example, the doctor may not be able to find clear and specific regulations on the specific operating specifications when he goes to the spa room for observation, even if it can be considered that the behavior of the doctor Zhang is not so appropriate, but according to the video, Zhang entered the spa room for only 2 minutes, and the female nurse only entered the spa room 30 seconds later than Zhang. In addition, as the attending physician of the patient, he is responsible for the patient's treatment process, and the doctor observes the patient during the treatment process according to the patient's physical condition and specific condition that he knows, on the one hand, in order to prevent the patient from going into shock, coma and losing the ability to call for help during the treatment, and on the other hand, it is also necessary to ask the patient how he feels about the treatment process, and the patient observes the patient's performance in the treatment, which is also necessary to accumulate medical records and study the condition. Even if the work done by the doctor can be considered useless and inconvenient for himself and the patient, it is still a minor act and cannot be considered a violation of privacy.

It must also be pointed out that the determination of infringement and illegal acts cannot be based solely on the literal meaning. For example, although the law stipulates that "entering, photographing, or peeping into other people's private spaces such as residences and hotel rooms" and "photographing or peeping into other people's intimate parts of the body" These two methods of violating privacy are usually invasive, but a guest staying in a hotel strayed into his adjacent A (female) room due to a power outage in the hotel, and walked out immediately after learning about it; two women, B and C, got into a fight on the road, and the strong B quickly removed C's shirt, making C naked, and the man who was passing by looked at C but quickly walked away, or Ding stepped forward and pulled B away but also looked at C. If you look at it literally, both A's behavior and D's behavior are violations of privacy. However, I am afraid that most people do not agree that the conduct of X A and the act of X D are an infringement of the right to privacy. This is because the determination of invasion of privacy and other infringements should not only be based on the literal meaning of the law, but should also be comprehensively measured from the provisions of the law as a whole and the general situation and social experience of society. Generally speaking, it constitutes a certain kind of infringement and violation, and the violation of morality has reached a relatively serious level, and moral condemnation alone is not enough to correct its behavior, and it is necessary to impose legal sanctions. For example, in the case of a violation of the right to privacy, the perpetrator is considered to have violated the right to privacy only when the perpetrator peeps into another person's bath, mistakenly enters another person's room, orders him to quit but does not quit, etc., and this reaches a relatively serious level. If all situations involving peeping into other people's homes and intimate parts of the body are recognized as violations of the right to privacy, the boundary between morality and tort will be abolished, and morality will lose its room to play its role.

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