赔礼道歉的三维结构及其修复功能
——医疗纠纷解决机制之探讨
The Restorative Role of Apology in Resolving Medical Disputes
Lessons From Chinese Legal Culture
2016/10/18 16:31:54 点击率[331] 评论[0]
【法宝引证码】
    【学科类别】比较法
    【出处】Journal of Bioethical Inquiry, December 2015, Volume 12, Issue 4, pp 699–708
    【写作时间】2015年
    【中文摘要】本文为英文医事法学论文,围绕着普通法国家道歉法的核心问题——即现行道歉法所保护的道歉是否具有正当性,本文着重探讨了赔礼道歉在中国传统文化中三维结构及其——基于此三维结构——所具有的修复功能。本文认为,普通法国家道歉法所定义的道歉仅具有一维结构,其功能仅限于表达同情;而与之相比,中国传统文化将“承认过错”、“承担责任”和“修复关系”视为赔礼道歉的三个核心要件,其三维结构不仅免于陷入一维结构道歉所遭遇的伦理困境,而且可作为一种纠纷解决机制用于医疗纠纷的化解和处置。本文最后对中国未来道歉立法应有别于普通法国家道歉法的三个基本方面进行了梳理和探讨。
    【中文关键字】道歉法;赔礼道歉;结构与功能;修复正义;医疗纠纷
    【全文】

      Introduction
     
      The role of apology and its significance in resolvingdisputes has attracted attention from the legal community since the 1980s (Taft2013; Wagatsuma and Rosett 1986)。 This notonly has produced a large number of research findings but also has laid thegroundwork for the legislative movement in the United States and some othercountries designed to protect some forms of apology from traditionalevidentiary rules. So far, more than two-thirdsof U.S. states have apology laws, amongwhich eleven have laws of general applicability and twenty-five have lawsspecific to the medical context (Mastroianni et al. 2010; see also McDonnell2008)。 In Australia, six states andtwo territories have developed legislation that generally makes the giving ofan apology or expression of regret incapable of constituting an admission andinadmissible as evidence in civil proceedings (Madden and McIlwraith 2013;Vines 2005)。
     
      Advocates emphasize the function of apology inavoiding litigation, reducing legal costs, facilitating settlements, mitigating damages for intangible harm, encouragingdisclosure of medical errors, and fulfilling many other utilitarian purposes (AHMAC2002; Cohen 1999; Davenport 2006; Gallagher 2003, 2007; Kellett 1987; Latif2001; Levi 1997; Robbennolt 2003, 2005, 2008; Runnels 2009; Shuman 2000)。 However,such a utilitarian interpretation of apology has been increasingly criticizedin recent years. The most trenchant criticism has come from Lee Taft (Taft 2000,2005a, 2005b, 2013)。 He emphasizes the moral nature of apology and holds theview that an authentic apology “demands great courage from the party who haserred because he must not only acknowledge wrongdoing, but also subject himselfto the consequences that flow from the admission, including the risk oflitigation” (Taft 2005b, 65)。 Australian researcher Prue Vines, writing from alegal rather than a moral perspective, points out that “most of thelegislatures which have attempted to deal with apologies have failed to dealcoherently with the real nature of an effective apology in the context ofpersonal injury litigation and are therefore unlikely to achieve the desiredresult” (Vines 2005, 485)。 Considerable controversy has arisen over thesincerity of offering an apology without admission of fault, as well as overthe moral justifiability of using apology as a means of avoiding legalentanglements.
     
      This debate is not merely being conducted withinWestern culture but has also been sparked by the exploration in the context ofthe legal culture of Japan and Korea (Bolstad 2000; Haley 1982, 1994; Lee 2005;Wagatsuma and Rosett 1986)。 However, conspicuously absent from the discussion hasbeen the Chinese notion of apology and its practice. There has been a lack ofexplanation of the East Asian notion of apology from the perspective ofConfucianism. This article seeks to fill this gap by exploring the structure of apology within the context ofChinese culture. In contrast to the one-dimensional apology that appears to be nomore than an expression of sympathy, a three-dimensional structure of apology ispresented in this article that defines acknowledgement of fault (e.g., “I'msorry I gave the wrong dose of medication”), admission of responsibility (e.g.,“I accept full responsibility for my mistake”), and offer of reparation (e.g.,“I have learnt my lesson and am willing to assist you in helping to resolve thedispute”) as three essential elements of an apology. It is argued that thethree-dimensional structure steers apology toward restoring the relationshipharmed by wrongful conduct and, thereby, restoring the harmony of ethical relationships.This article has four sections. Following this introduction, section two outlinesthe Chinese notion of apology in which all three elements described above areessential for constituting a form of reparation. Section threeplaces thisthree-dimensional apology in the context of the Chinese concept of “the relationsof humanity” to explore its restorative role. It explains why and how an apology accompanying admission offault and responsibility can bring its restorative power to the arena ofmedical disputes. Section four concludeswith some thoughts on how the three-dimensional apology might be recognizedlegally in the proposed Chinese apology law.
     
      A Three-Dimensional Structure of Apology
     
      The Western concept of apology,as defined by the Oxford EnglishDictionary (OED), signifies “anexplanation offered to a person affected by one's action that no offence wasintended, coupled with the expression of regret for any that may have beengiven; or, a frank acknowledgement of the offence with expression of regret forit, by way of reparation” (OED 2015)。Researchers generally agree that an apologyis structured around the element of expression of sympathy, regret, remorse, shame,forbearance, or humility. The main differences of opinion seem to be about whether(1) acknowledgement of fault, (2) admission ofresponsibility, and (3) offer of reparation should be identified as essentialelements of the structure of apology.
     
      Although the first two elements—i.e., admission offault and responsibility—have been emphasized by many researchers as essentialfor an authentic apology (Lazare 1995; Levi 1997; Orenstein 1999; Shuman 2000; Taft2005a; Vines 2005), the vast majority of the apology laws enacted in the United Statessuggest that portions of a statement that explain or acknowledge responsibilitycould be used as evidence of fault in litigation. Of the thirty-four states andthe District of Columbia that have enacted apology laws, only six have sympathy-and-faultlaws that protect both a provider's expression of sympathy and any admissionsof fault or responsibility (Mastroianni et al. 2010; see also McDonnell 2008;Cohen 2004)。 In Australia, most legislation (except that of New South Wales, theAustralian Capital Territory, and Queensland) defines the protected apology as anexpression of regret that does not contain an admission of fault or liability (Vines 2005, 2013)。 The Australian Commission on Safety and Quality in Health Care (ACSQHC)defines apology as including “an acknowledgment of responsibility, which is notan admission of liability” (ACSQHC 2012, v)。 As for offers of reparation, althoughoften referred to as a part of apology (Lazare 2006; Haley 2009), this element is generally regarded as an extra point for the fullest form of apology, rather than a necessaryconstitutive element of the structure of apology (Tavuchis 1991)。 Excluding the elements of acknowledgement of fault,admission of responsibility, and offer of reparation from the structure ofapology leads to a one-dimensional apology that appears no more than anexpression of sympathy or regret. Such a notion of apology has been criticizedas subverting the moral ritual for strategic and instrumental purposes (Taft2000)。 Some researchers suggest that an apology is not real unless it includesan acknowledgement of fault (Vines 2005, 2007)。 There are also researchers who criticizethe “private, individualistic notion of apology” and, as an alternativeapproach, call for developing the “notion of apology as an act of restoringsocial solidarity” (Alberstein and Davidovitch 2011, 157)。
     
      In contrast to the one-dimensional apologydescribed above, the Chinese notion of apology appearsas a three-dimensional structure. The Chinese term pei li dao qian literally translates as apology (Gray and Zheng1989; Jones 1989)。 This term is composed of four Chinese characters, each ofwhich conveys a certain meaning. Pei means“to compensate, to repair, and to restore” (Zhang and Chen 2002, 1186)。 Li means “rituals” or “ritual principles,”which in Chinese traditional culture refer specifically to a hierarchicalethical relationship. Dao means “to accountfor, to discuss, and to express” (Zhang and Chen 2002, 1246)。 Qian means “incompleteness, inadequateness,and shortage” (Xu and Duan 1981, 413; Zhang and Chen 2002, 519)。 Thecombination pei li means to restorethe ethical relationships. The combination daoqian means to make an avowal[1]of one's wrongdoing and to express regret about bringing incompleteness to theexisting ethical relationships. The combination of the four Chinese charactersshows that the Chinese notion of apology is more akin to the concept of“collectivist apology,” which emphasizes “amendment of the social order andharmony” as the central values of apology (Alberstein and Davidovitch 2011, 158)。Although the Chinese apology shares the common element of expression ofsympathy, regret, or remorse with the one-dimensional apology, the threecontroversial elements—acknowledgement of fault, admission of responsibility, and offer ofreparation—occupy a prominent place in the structure of apology.The three essential elements and their cultural implications are discussed indetail below.
     
      Acknowledgement of Fault
     
      In the context of private, interpersonal interactionbetween parties, apology may be used as a social lubricant to alleviate tensionand create a friendly atmosphere. A person may apologize not because he feelsthat he has done anything wrong, but because it is polite and tactful toexpress sympathy to those who are offended. In contrast to the individualisticor utilitarian notion, the Chinese notion of apology tends to be morecollectivist and moralistic in nature. As daoqian specifically signifies, those who offer an apology must recognize andpublicly acknowledge that their wrongdoings threaten serious harm to theethical relationships. The acknowledgement is considered as the very basicprecondition of making apology. Because of the adverse influence on socialharmony, the Chinese believe that apologies must be brought into the open with theacknowledgement of fault, so that a broad popular identification with theexisting ethical relationships can be awakened and sustained.
     
      The mosttypical example of this notion is an ancient Chinese emperor's “Repenting Edict.”[2]There were approximately seventy-nine Chinese emperors who issued such kinds ofedicts, which commonly attributed the cause of large-scale disasters to theemperors' individual incompetence and fault. It was believed that Heaven'sforgiveness could be obtained only through a formal apology made by the emperor,the Son of Heaven, to all the people of the empire. A personal apology alsoneeds to be made in public so as to express the acknowledgement of fault, as itdid in about 279 B.C. in the case of Lian Po. The general trussed himself up,bared his back, offered himself for lashings, and knelt in front of hisfriend's house to ask for forgiveness and reconciliation. The importance of theacknowledgement given to an apology can also be seen in the modern legislationof China. For example, article 46 of the CopyrightLaw provides that an apology must be made in public. The People's Court mayorder a defendant to publish a statement of apology in mainstream newspapersand media (SPC 2014, see also “Cases A” listed below)。 The need for theacknowledgement is particularly necessary, as provided by article 50 of the Public Procurators Law (see “Statutes”listed below), when the apology is offered by a public servant on behalf ofpublic power.
     
      Admission of Responsibility
     
      In contrast to the one-dimensional apology that islimited to expressing sympathy, the Chinese notion suggests that an apology amountsto an admission of responsibility. Within the framework of the understanding ofapology, as discussed above, a person should not have to apologize if he feels thathe has done nothing wrong. He may use the Chinese terms yihan (i.e., there remains a sense of incompletion) and tongqing (i.e., I have the same feelings)to express a deep sorrow and sympathy for the other's suffering. But not pei li dao qian (apology) because, inthe context of Chinese tradition, an apology is thought of as the result ofself-reflection on one's wrongful conduct. It shows moral courage to face up tothe justifiability of an action and its moral permissibility. Once aware of thewrongful nature of the conduct, the wrongdoer must fulfil his moral obligationto accept responsibility for having done so and for mitigating the consequencesthat have ensued. The Chinese apology is thus always accompanied by thecorresponding forms of self-punishment, ranging from fasting for several daysto keeping vigil beside the tomb for several years.
     
      In theyear of the Emperor Chongzhen's suicide in 1644, the last emperor of the MingDynasty left his “Repenting Edict.” The apology from the emperor not only containedan avowal of fault but also indicated a willingness to take responsibility forwhat occurred. He asked the rebels to mutilate his body but not to harm asingle civilian. The emperor further made a request to take off his crown andcover his face with his hair because, as he said, he had neither the honour northe dignity to face his ancestors. An apology without an acceptance ofresponsibility can be regarded as rather glib speech from the Confucian pointof view. It is not only insincere but also immoral in nature. As Confuciussaid, “Fine words and an insinuating appearance are seldom associated with truevirtue” (Legge 1932, 4)。 On the basis of the significance of apology as anindication of a genuine desire for taking responsibility, offering an apology is stipulated as one of the principalforms of assuming civil liability in many Chinese laws and administrative rules(see “Statutes”)。 The fact that the defendant has assumed civil liability in the form ofapology is to be stated in the judgement of the People's Court (Wang 2003)。
     
      Offer of Reparation
     
      In contrast to a one-dimensional structure in which apologyis conceptualized as an individual and private activity, this three-dimensionalstructure highlights the proper role of apology in the public sphere. As thefirst part of the Chinese apology, pei li,indicates, the telos of apology is to restore the relation harmed by wrongfulconduct and, ultimately, to restore the harmony of ethical relationships. Fromthe perspective of Chinese culture, a wrongdoing is not a private matter betweenan individual wrongdoer and an individual victim but a public issue of ethical concern.The moral work of responding to wrongdoing is thus not just to punish theindividual wrongdoer and compensate the individual victim but to repair thedamaged relationship and to restore the ethical relationships. This point willbe discussed in more detail in the next section.
     
      Reparation is generally understood as “compensation,typically in money, for injuries or damage done to members of groups or theirancestors” (Roth 2005, 1260)。 Confucianism—a crystallization of Chinese culture—believesthat a superior man should be concerned with righteousness rather than gain (Legge1932)。 Reparation, therefore, may not necessarily take the form of financialcompensation, but it must include a remorseful recognition of wrongdoing andefforts to reduce the negative consequences. An offer to compensate in money fordamages without a clear understanding of right and wrong is considered in theChinese context to indicate no sense of shame. A sense of shame is veryimportant in the Chinese ethical system because it is one of the four moralpillars—propriety, righteousness, honesty, and shame—that contribute to themaintenance of a nation. By offering a public apology with an acknowledgementof fault and an admission of responsibility, a wrongdoer articulates a sense ofshame about violating social or legal norms. Having a sense of shame indicatesthe willingness to return to the ethical relationships, which may assist the wrongdoerto regain social acceptance. The Chinese notion of apology thus emphasizes the restorationof the wrongdoer's moral stature, the victim's moral dignity, and the community'smoral harmony and therefore moves the damaged relations away from reachingbreaking point. More detailed discussion will be given in section three below.
     
      The Chinese notion of apology is very close to theWestern concept of “full apology,” in which the party offering the apology notonly “accepts legal responsibility for both the harm caused and the sufferingtied to that harm” (Taft 2013, 185) but also “offer[s] some form ofcompensation and a commitment to change in the future” (Carroll 2014, 492)。 Theimportance of acknowledging harm, recognizing responsibility and accountability,and offering effective reparation is also emphasized by recent research inWestern health services (Bismark 2009)。 A sincere apology, especially formedwith these elements, is argued to have a restorative power that, as MarieBismark remarks, “can bring comfort to the patient, forgiveness to the healthpractitioner, and restore trust to the relationship” (Bismark 2009, 104; seealso Bismark and Paterson 2005; Bismark and Dauer 2006; Iedema et al. 2008; Lazare2004)。 Some forms of reparation have been developed in Western health systems—forexample, New Zealand's Accident Compensation Corporation (ACC) assists injuredpatients to obtain compensation and access rehabilitation services (Bismark2009)。 The three-dimensional structure of apology thus contains someingredients of restorative justice (Braithwaite 2002; Johnstone 2011), such as makingwrongdoers aware of the nature of the harm, ensuring that they recognize responsibility,enabling them to be reintegrated into the community, empowering victims and othersclosely connected, promoting areturn to certain principles or values, and strengthening orrepairing relationships (Johnstone and Ness 2007)。 Comparative discussion ofthe different notions of apology in the Western and Chinese contexts shows thatapology is not limited to an expression of sympathy. Apologies in China, on thecontrary to what was observed by O'Hara (2004) in the United States, are neithertoo easy to be proffered nor too easy to be accepted. The role of apology inthe legal setting cannot be limited to serving some definite utilitarianpurpose such as promoting settlement, avoiding lawsuits, or reducing costs. Thenext section of this article will be devoted to placing the three-dimensional apologyin the context of the relations of humanity in order to understand the restorativerole of apology in resolving medical disputes.
     
      Understanding Apology in the Context of the Relationsof Humanity
     
      Apology as a form of socialinteraction may be better understood by placing it in the context of the Chineseconcept of “the relations of humanity.” In contrast to the individual andprivate nature of the Western notion of apology (Wagatsuma and Rosett 1986; Albersteinand Davidovitch 2011), the Chinese notion of apology emphasizes the restorationof ethical relationships that are damaged by the harm of wrongdoing. Thediscussion below aims to illuminate why an instance of wrongdoing is considereda public issue of ethical concern in the context of Chinese culture and howa public apology accompanying admission of faultand responsibility helps to restore the harmony of relations.
     
      The relations of humanity, also known as FiveRelationships (wulun), refers to “theproper ethical relationships defined in the Bookof Mencius, namely affectionbetween father and son, righteousness between ruler and subject, distinctionbetween husband and wife, precedence of the old over the young, and faithbetween friends”[3](Taylor 2005, 695)。 The five relations generate different obligations, and intertwine with oneanother so as to weave the social network. If these obligations are met fullyand the five relations are maintained, according to Mencius, the whole land willenjoy tranquillity (Legge 1932)。 Family is perceived as the basic social unitin the ethic of relations. Three of the five relations address family relationsandtheobligations associated therewith. In the relation of father (including mother,grandparents, and other elder members of afamily) and son (including daughters and other juniormembers of a family), for example, filial piety is the primary virtue. Thereare three degrees of the obligation of filial piety, as Zengzi (505–436 B.C.) said: “Thehighest is the honouring of our parents; the second is not disgracing them; andthe lowest is being able to support them” (Legge 1885, 226)。
     
      More specifically, when a parent is ill, thechildren have an obligation to choose a qualified doctor and ensure the safetyof medication (Legge 1885); if a parent is killed by a known perpetrator, thechildren have an ethical obligation to take revenge (Xu 1994)。 Sinceeye-for-an-eye retribution was prohibited by ancient Chinese law, the ethicalobligation was transformed into a legal obligation that required the childrento bring the injustice their parent suffered to the public eye and urge the magistrateto bring those responsible to justice. Failure to fulfil the obligation offilial piety may result in a criminal sanction. For example, if the childrenaccepted financial compensation instead of insisting on legal retribution, theywould incur criminal liability for the crime of larceny under the Tang Code (promulgated in 653 A.D.), theSong Code (promulgated in 962 A.D.),the Great Ming Legal Code(promulgated in 1397), and the Great QingLegal Code (promulgated in 1646)。 The dynasties were different, but theprinciple was the same. The severity of the criminalpenalty would be determined by the degreesof the relationship between victim andbeneficiary and by the amount of compensation the beneficiary received. The more compensation the close relativesreceived, the more severe criminal penalties they faced. A significant breachof filial piety might result in the Imperial court's moral condemnation of thewhole townspeople living in the place where the breach occurred. Thetownspeople would be ordered to suspend their participation in the imperialexamination[4]or demolish a corner of the city walls to express their remorse and shame. Although traditional legal principles are no longer valid underthe modern Chinese legal system, it is believed that they might still influenceChinese ethical awareness about relations.
     
      The ethic of relations outlined above has largelyshaped the Chinese understanding of medical adverse events. In contrast with theWestern view of the medical relationship as being set between a medicalprovider and a patient, the Chinese view the relationshipas a social network that is not limited to the two individuals. A medical adverse event is not only an injury adversely affecting thelife and health of a patient and causing emotional harm to the patient's familymembers but also—based on Chinese ethics—a crisis that undermines the stabilityand hegemony of the existing relations of humanity. An adverse event imposes aseries of moral dilemmas on the relationshipsestablished around the patient. All membersof these relationships have an obligation to make their responses publicly. Each person's response to his or her ethicalobligations may make the whole problem boildown to the issue of “how others are seeing me.” This point is typicallyillustrated by the dilemma that Shao Jie was confronted with in the incident ofChangzhou No. 2 People's Hospital.
     
      On February 28, 2011, a seventy-two-year-old mandiagnosed with gallstones and cholecystitis was hospitalized for surgery at theChangzhou No. 2 People's Hospital, Jiangsu Province, in China. The patient diedon the fourth day after his admission. After repeatedly asking the hospital foran explanation, the family of the deceased patient filed a malpractice lawsuitagainst the hospital. The eldest daughter of the deceased patient, a doctor who had been working for thedefendant's hospital for twenty-seven years, rejected mediation, saying thatshe “only requests the court to adjudicateon the claim” (Tian 2011, F5)。 When shewas asked why she chose to resolve the dispute through litigation andadjudication rather than mediation, she, a doctor who was suing the hospital whereshe worked, replied that she was under great mental pressure both from hercolleagues and her family. She then explained:
     
      I originally thought thatmy hospital would give me as well as my family a reasonable explanation [for myfather's death]. … I really hoped my hospital could give us a response, even ifit is an oral apology, which would let my father go with dignity, but they didnothing. … [My father died unaccountably in the hospital his daughter has beenworking in]: how are my brother and sister seeing me? … [The hospital] may not needto pay a penny of compensation, as long as they acknowledge fault and accountfor the death for my father (Tian 2011, F5)。
     
      As illustrated by Shao Jie,the eldest daughter of the deceased felt obligated to choose a qualified hospital with competent personneland adequate equipment when her father was ill and to require the hospital to account for thedeath of her father when he died unaccountably.When the hospital refused to provide an explanation and apology following herfather's death, she felt obligated to bring the injustice to thepublic eye and urge the court to make a decision. She felt remorse and shame for notfulfilling the obligation of filial pietysuch as ensuring safe treatment for her father. She was tortured by thequestion of “how the others are seeing me,” which meant she feared losing herown dignity and honour, losing the trust of others, and even being excludedfrom important relationships with family and friends.
     
      A public apology accompanying admission offault and responsibility may help these patients' family members to removetheir moral burden, regain their dignity and honour, and restore their networksof trust and relations. The refusal of medical providers to give an apology isequivalent to pushing these families into a corner, as it did in the incident of Beijing Daxing District Maternaland Child Health Hospital in 2012, when the husband of a deceased patient rejected the hospital's offer of compensation because, as he said, “the hospital must accountfor the death of my wife, otherwise I cannotaccount for [it] to my relatives” (He 2012, 33)。 From the families' point ofview, a medical dispute cannot be regarded as fully resolved if fault andresponsibility are not acknowledged publicly.
     
      It is the families' ethical obligation to bring theinjustice to the public eye and urge the authorities to bring those responsibleto justice. In the absence of apology as well as its restorative power in suchsituations, publicity can only be gained through resorting tolitigation or, sometimes, violent confrontation.There are many instances of litigation inwhich claimants issued proceedings in the hope that defendant hospitals would providepublic apologies to them (see “Cases B” listed below)。 In the incident ofQingyuan People's Hospital in 2011, moreover, the deceased's family asked thelocal health authority to report the medical accident to the Ministry of Health(Deng and Gao 2011)。Ignoring these demands can ignite violent confrontations betweenmedical providers and victims' families and, sometimes, lead to what the Chinese government has called an “unexpectedmass incident.” For example, on December 5, 2010, a crowd of more than onethousand gathered around the Zhangjiagang First People's Hospital and refusedto leave until the local government agreed to a full investigation of themedical accident at issue (XinhuaNews 2010)。 Additionally, in 2012 at theFourth Outpatient Department of Dongguan Taiping People's Hospital, more than sixtyrelatives and friends of the deceased gathered around the outpatientdepartment, blocking the entrance, smashing windows, and damaging an iron door(Huang 2012)。 The local government calmed the situation bypromising to carry out a full inspection of the local healthcare system so asto reduce medical errors (Humen Branch 2012)。 These incidents highlight the inherentconnection between the restorative role of apology in repairing relations andthe restorative role of apology in resolving medical disputes. The urgent need todevelop legal remedies in response to the demands of patients for an apology isalso highlighted.
     
      Conclusion
     
      This article presents athree-dimensional structure of apology that defines acknowledgement of fault,admission of responsibility, and offer of reparation as the three essentialelements of an apology. The three-dimensional structure stems from the inherentrequirement of apology to repair relations so as to restore the harmony ofethical relationships, rather than from emotional needs or as a copingstrategy. This finding may enrich the discussion about what an apology involves,what makes an apology meaningful, and what constitutes a sincere or authenticapology (Carroll 2013)。 The analysis of why an acknowledgement of fault and an admissionof responsibility are defined as two indispensable elements of apology mayfacilitate reflection on the prevailing “partial apology” that excludesacceptance of fault and responsibility. The discussion of why reparation is notlimited to financial compensation may lead to more insights into achievingreconciliation.
     
      The exploration of the three-dimensionalapology opens up a new avenue that calls for apology to be contextualizedwithin the social structure, rather than the relationships between twoindividuals, to understand its role and value. This new approach shows that an apologyis not necessarily a private or subjective act. As can be seen from many medicaldisputes in China in recent years, some claimants filed lawsuits asking thePeople's Courts to order the defendant hospitals to apologize publicly, andsome even resorted to violence to force medical staff to apologize publicly. Apublic apology accompanying admission of fault and responsibility is soessential in restoring the harmony of relations that the creation of an apology law in China could be considered a responseto the adversarial relationship between medical providers and patients. Theproposed Chinese apology law would differ from the existing apology laws enactedby U.S. states and other jurisdictions in the following three points. First, thefocus would shift from protectingpractitioners from litigation to a focus on better promoting real apologies.Second, apologies would be encouraged not by excluding its admission on theissue of liability, but instead by permitting its admission to mitigatedamages for non-economic loss.Third, the law would establish apologies as a mitigating factor, notbecause apology is exculpatory on the issue of liability, butinstead because a three-dimensional apology constitutes assumption of liability.
     
      The author's forthcoming work on apology will explain the necessity of apology legislationin China and explore in detail how the three-dimensionalapology might be recognized legally in the proposed Chinese apology law. It will be argued that the three-dimensional apology should be recognized as a legalform of assuming civil liability. When the portions ofan apology that acknowledge fault and responsibility are admissible inlitigation, they might also be considered by the courts as an importantmitigating factor in assessing compensation liability.
     
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      Cases A
     
      《北京金山安全软件有限公司与周鸿祎侵犯名誉权纠纷案》[BeijingKingsoft Security Software Co Ltd v Zhou Hongyi—Dispute over the Infringementof the Right of Reputation], 北京市第一中级人民法院[First IntermediatePeople's Court of Beijing Municipality, People's Republic of China], 一中民终字第09328号[Civil Appeal No 09328], 25 August 2011.
     
      《徐大雯诉宋祖德、刘信达名誉纠纷案》[XuDawen v Song Zude & Liu Xinda—Dispute over the Infringement of the Right ofReputation], 上海市静安区人民法院[Jing'an District People'sCourt of Shanghai Municipality, People's Republic of China], 静民一(民)初字第779号 [Civil First Trial No 779], 25 December2009.
     
      《赵雅芝与上海琪姿贸易有限公司、上海诺宝丝化妆品有限公司侵害姓名权纠纷、肖像权纠纷案》[ZhaoYazi v Shanghai Qizi Trading Co Ltd & Shanghai Nuobaosi Cosmetics Co Ltd—Disputeover the Right of Infringement of the Right of Name and the Right of Portrait], 上海市浦东新区人民法院[Pudong New DistrictPeople's Court of Shanghai Municipality, People's Republic of China], 浦民一(民)初字第17767号 [Civil First Trial No 17767], 23 November2012.
     
      Cases B
     
      《陈某某与复旦大学附属华东医院医疗损害责任纠纷案》[Chenv Huadong Hospital Affiliated to Fudan University—Medical Injury CompensationDispute Case], 上海市第二中级人民法院[Second IntermediatePeople's Court of Shanghai Municipality, People's Republic of China], 沪二中民一(民)终字第130号 [Civil Appeal No 130], 21 January 2013.
     
      《上诉人陈维伦、张秀连与上诉人广州医学院第一附属医院医疗损害赔偿纠纷案》[ChenWeilun & Zhang Xiulian v First Affiliated Hospital of Guangzhou MedicalUniversity—Medical Injury Compensation Dispute Case], 广东省广州市中级人民法院[Intermediate People'sCourt of Guangzhou Municipality of Guangdong Province, People's Republic ofChina], 穗中法民一终字第6020号 [Civil Appeal No 6020],2010.
     
      《刘某、张某某与复旦大学附属妇产科医院医疗损害责任纠纷案》[Liu& Zhang v Obstetrics and Gynecology Hospital of Fudan University—MedicalInjury Compensation Dispute Case], 上海市第二中级人民法院[Second IntermediatePeople's Court of Shanghai Municipality, People's Republic of China], 沪二中民一(民)终字第2563号 [Civil Appeal No 2563], 23April 2012.
     
      《原告田某某、赵某某、张某某、张某与被告某某医院医疗损害赔偿纠纷案》[Tian& Zhao & Zhang XX & Zhang X v X Hospital—Medical InjuryCompensation Dispute Case], 陕西省西安市灞桥区人民法院[Baqiao District People'sCourt of Xi'an Municipality of Shaanxi Province, People's Republic of China], 灞民初字第00794号 [Civil First Trial No000794], 3 July 2012.
     
      《张秋霞、廖鄂华、廖郧华与佛山市中医院医疗损害赔偿纠纷案》[ZhangQiuxia & Liao Ehua & Liao Yunhua v Foshan Hospital of TraditionalChinese Medicine—Medical Injury Compensation Dispute Case], 广东省佛山市中级人民法院[Intermediate People'sCourt of Foshan Municipality of Guangdong Province, People's Republic of China], 佛中法民一终字第304号 [Civil Appeal No 304], 23 April 2008.
     
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      《中华人民共和国消费者权益保护法》[Law of the People's Republic of China onthe Protection of Consumer Rights and Interests] Standing Committee of theNational People's Congress, 25 October 2013 (see article 50)。
     
      《中华人民共和国海关行政赔偿办法》[Measures of the People's Republic ofChina for Customs Administrative Compensation] General Administration ofCustoms, 24 March 2003 (see article 60)。
     
      《国家经贸委行政审批管理办法》[Measures of the State Economic andTrade Commission for the Administration of Administrative Examination andApproval] State Economic and Trade Commission, 8 January 2003 (see article 34)。
     
      《中华人民共和国检察官法》[Public Procurators Law of the People'sRepublic of China] Standing Committee of the National People's Congress, 30 June2001 (see article 50)。
     
      《中华人民共和国治安管理处罚法》[Public Security AdministrationPunishments Law of the People's Republic of China] Standing Committee of theNational People's Congress, 26 October 2012 (see article 117)。
     
      《计算机软件保护条例》[Regulation on Computers SoftwareProtection] State Council, 16 January 2013 (see articles 23, 24)。
     
      《企事业单位内部治安保卫条例》[Regulation on Internal Security andSafeguard for Enterprises and Public Institutions] State Council, 13 September2004 (see article 20)。
     
      《信息网络传播权保护条例》[Regulation on Protection of the Rightto Network Dissemination of Information] State Council,30 January 2013 (see article18)。
     
      《中华人民共和国电信条例》[Regulation on Telecommunications ofthe People's Republic of China] State Council,  20 September 2000 (see articles 74, 75)。
     
      《事业单位人事管理条例》[Regulation on the Personnel Managementof Public Institutions] State Council, 26 February 2014 (see article 42)。
     
      《中华人民共和国国家赔偿法》[State Compensation Law of the People'sRepublic of China] Standing Committee of the National People's Congress, 26 October2012 (see article 35)。
     
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    【作者简介】
    林暖暖,法学博士(PhD in Law),讲师(Lecturer in Law),现任教于澳大利亚迪肯大学法学院(Deakin University, Deakin Law School);主要研究领域为比较医事法(Health and Medical Law)、侵权法(Tort Reform)以及非讼纠纷解决机制(Alternative Dispute Resolution)。
    【注释】
    [1]The term “avowal” is understood herein the sense of Foucault's definition of avowal as “something more than asimple declaration”. “What separates an avowal from a declaration”, saidFoucault, “is not what separates the unknown from the known, the visible fromthe invisible, but what might be referred to as a certain cost of enunciation”.“One who avows a crime, in a sense, commits to being the author of the crime.By that I mean he not only accepts the responsibility, but he also establishesthis acceptance on the fact that he did commit the crime. In an avowal, he whospeaks obligates himself to being what he says he is.” (Foucault 2014, 15, 16)
    [2]“Repenting Edict (zui ji zhao)” was an imperialproclamation by which the emperor publicly apologized to the whole nation abouthis past policy mistakes. The twowell-known examples werethe Repenting Edict of Luntai issued by the Emperor Wu of Han in 89 B.C. andthe Repenting Edict issued by the Emperor Chongzhen in 1644.
    [3]In the Book of Mencius, Mencius (372–289 B.C.) said: “This was a subject of anxious solicitude tothe sage Shun, and he appointed Seě to be the minister of instruction, toteach the relations of humanity: -- how, between father and son, there should be affection; between sovereign andminister, righteousness; between husband and wife, attention to their separatefunctions; between old and young, a proper order; and between friends,fidelity.” (Legge 1932, 630-631)
    [4]The imperialexamination was a civil service examination system in Imperial China throughwhich government officials were selected and appointed to different levels ofbureaucracy. The system was established in 605 A.D. and officially abolished in1905.

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