德國聯邦法院過去對醫療糾紛係採侵權行為說，原因在於2001年德國債法修正前，舊法第847條第1項規定：「（1）在侵害身體或健康，或侵奪自由之情形，被害人對非財產上之損害，亦得請求賠償相當之金額。 此項請求權，不得讓與或繼承，但已依契約承認或已起訴者，不在此限。」債務不履行時，相對人無法請求非財產上之損害賠償。因此對於醫療糾紛被迫以侵權行為法解決。
在2001年德國債法修正後，新法第253條第2項規定，因身體、健康、自由或性自主之侵害，而應負損害賠償責任，縱非財產上損害，亦得請求以金錢為適當之補償。因此對於契約責任與無過失責任也有其適用。因此成為侵權行為說與債務不履行兩說併行。本文詳細說明此一轉變的原因，也分析了2011年新增醫療契約節後規範的現況。到2011年德國民法納入醫療契約，明確的從從侵權行為法轉向為契約法。德國學者也認為此一轉變是一個好的轉變，因為醫療責任原本就是以契約責任為主。醫病間也是平等的契約夥伴關係。醫師只要事先有合理的告知，並取得病人的同意，並非對病人從事侵權行為；若對履約結果有爭議，應該是義務之違反問題。
" In the case of injury to body or health, compensation shall be made by replacing the cost of healing as well as the financial loss, the injured party may suffer a, that is a result of the breach temporarily or permanently canceled its earning capacity or diminished or occurred to increased needs , Because of the damage, which is not financial damage, a reasonable compensation in money can be demanded. "
Abstract：The main idea of medical dispute in Germany has shifted from torts to the breach of contract. Before 2001 the German new Obligation Law was amended, "In case of injury to body or health, compensation shall be made by replacing the cost of healing as well as the financial loss, the injured party may suffer a, that is a result of the breach temporarily or permanently canceled its earning capacity or diminished or occurred to increased needs, Because of the damage, which is not financial damage, a reasonable compensation in money can be demanded." However, in case of breach of contract, intangible damage can not be replaced. According to Art.253: " (1) Money may be demanded in compensation for any damage that is not pecuniary loss only in the cases stipulated by law. (2) If damages are to be paid for an injury to body, health, freedom or sexual self-determination, reasonable compensation in money may also be demanded for any damage that is not pecuniary loss." The way for another solution in treating medical disputes is open. German Scholars agreed that the change is a good one, because the responsibility of medical care is coming from the contract. Doctors and their patients are equal partners. When a medical doctor undertakes a defect surgical operation, it does not constitute a torts, but a breach of contract. However, the verdicts of German courts still remains to acknowledge both torts and breach of contract as basis of claim, before the new Subtitle 2 Treatment Contract enter into force in 2011. This Article analysis the new Treatment Contract, and this could be useful for Taiwan's legislation.
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