Medical Injury Compensation Legal System International Comparative Study

Since the Third Plenary Session of the Eleventh Central Committee in1978proposed to establish and improve socialist democracy and legal system, China has a huge and regulations Group, but the medical damages there are more serious in the law applicable to the dual problem. Medical damages "dualistic" in violation of the basic requirements of the rule of law. resulting in the application of law is not unified; affect the play of judicial functions, highlighting the legal system of internal conflict; violation of the requirements of the efficiency of litigation, an increase of medical damages relief the cost; is not conducive to building integrity and the rule of law, exacerbated the tensions in the doctor-patient relationship. Officially take effect July1,2010,"Tort Liability Act" at the legislative level has made some achievements, the first use of a unified concept of medical liability for damage, clear medical damage the responsibility of the full type system, standardize the rules of the medical liability for damage The principle system."Tort Liability Act," but there are also a little less than, for example, only established a single criterion of medical mistakes, no provision should be considered a relevant factor; still evaded the issue of medical liability for damage identification; the provisions of the personal injury compensation standards are no outstanding medical damage The characteristics of the liability. In view of the particularity of medical liability for damages, the author as a reference to the civil law and common law, according to the specific situation in our country, should be the introduction of the special law to the tort-based regulation, but under special circumstances, such as According to the tort liability limitation has expired, or the offender may be done to a considerable duty of care were Disclaimer should be given the victim to liability for breach of the right to pursue the medical side. Through the study of comparative law, how to reconstruct the burden of proof in action for damages in our medical system, improve the medical moral damage compensation system and medical damage liability insurance system to put forward their views. System on how to reconstruct our medical action for damages, the burden of proof, the authors suggest that the reference to Germany the burden of proof system, see the introduction of the table to prove the theory to prove the responsibility of transformation theory and obstruction of proof theory, expanding the judges discretion, the treatment of risk to make proper consideration. On how to improve our medical and moral damage compensation system, the subjects of rights, the amount of compensation, the compensation method described in detail. On how to improve our medical liability for damage insurance system, the author analyzes the feasibility and specific ideas of compulsory medical damage liability insurance system, and propose a system in the implementation of possible problems and countermeasures.