| The medical trouble relations are closely linked with populace's vital interest,doctor cannot leave the patient,the patient also cannot leave doctor.In recent years,my Chinese medicine trouble dispute increased sharply,the medical trouble contradictory to enlarge day by day year by year,already became the influence entire society harmonious prominent society question.However,as a result of the medical trouble dispute's medicine specialization,causes the medical trouble dispute to solve the difficulty to be big,the dispute solves the cost to be high.Is different with the general civil legal relationship,medical trouble both sides are not the pure benefit coordinated contract legal relationships,in the medical service process,between the medical trouble's benefit is consistent,is for the patient disease's cure.After patient disease cures,the Medical establishment the medical expense which gathers to the patient does not have in civil legal relationship equal paid,the medical expense which the patient pays far is lower than the actual treatment cost which the Medical establishment pays.Therefore,the Medical establishment mostly is the Institution,the country gives the fiscal subsidy to a certain extent.On the other hand,along with our country health organizational reform's thorough,the medical profession marketability,the medical service competitiveness reform measure's implementation,causes patient's medical expense to increase largely.Between the medical trouble lacks the effective communication and the understanding,the patient to the disease treatment result high request,as well as the partial medical personnel sense of responsibility not strong and so on factors,causes the medical trouble dispute to increase progressively year by year,medical trouble contradictory day by day incisive.In order to construct the harmonious medical trouble relations,the medical trouble dispute's solution has become our country Administrative department,the judicial organ and so on related department's important task.As compulsory,the result,the authority civil dispute solve the mechanism--medicine trouble dispute legal procedure,has not manifested medical characteristics and so on dispute's specialization,lawsuit main body particularity in the nowadays,has not had the fair solution medicine trouble dispute's goal.For the standard incident of malpractice administration disposal procedure,the State Council promulgated "Incident of malpractice in 2002 To process Rule",to incident of malpractice's constitution,the incident of malpractice evaluation program,the incident of malpractice measure of indemnity and so on has carried on the standard,but these standards were suitable merely for medical trouble dispute's administrative processing.The Supreme People's Court has promulgated "Supreme People's Court in 2001 about Civil action Evidence Certain Stipulations",has made the onus probandi inversion stipulation to the medical service infringement suit,causes the patient to present evidence the burden to reduce greatly. Followed closely the Supreme People's Court to promulgate "Supreme People's Court in 2003 about Reference Trying Medical service Dispute Civil case's Notice",divided the medical service infringement suit into the incident of malpractice compensation dispute and other medical compensation dispute,and stipulated that these two kinds sued are suitable the different substantive law and the procedural law.This causes the medical trouble dispute to solve the basis dualization,specially in recognized that in the medical personnel subjective mistake,presents the different evaluation program,the different appraisal conclusion.The above administrative rules and regulations,the judicial interpretation had already made our country present stage medicine trouble dispute legal procedure chaotic condition to a certain extent.This article is a system construction legal procedure for the central medical trouble dispute legal procedure doctorate paper.The full text is composed of the introductory remarks and the main text six chapters,altogether 170,000 characters.This article take medical trouble of dispute legal procedure restructuring as research key,to presents the right of suit safeguard,the law in my Chinese medicine trouble dispute judicature practice to be suitable the dualization,rationality of retum,the medical service infringement suit onus probandi assignment and the substantive law the expert evidence power and the judicial authority boundary turns over to conflict of the responsibility principle and so on prominent procedural law theory,the evidence act theory question to conduct thorough and the careful research.Mainly discusses the concrete question which in my Chinese medicine trouble dispute legal procedure appears,and profits from the mainland legal system advanced countries about the medical trouble dispute lawsuit judicial experience, plans to construct our country fairly finally,the highly effective medical trouble dispute legal procedure system.Introductory remarks introductory remarks outline this article selected topic background,selected topic significance,paper research content innovation and research technique.Increases sharply in view of my Chinese medicine trouble dispute,the medical trouble contradictory to intensify and so on present situations day by day year by year,to set up the judicial authority,the thorough settlement medicine trouble dispute,and to other medical trouble dispute must disputed that the solution way sets up the dispute to solve the standard,fair,fair,the highly effective medical trouble dispute legal procedure's construction is especially urgent.Fair,fair,construction of the highly effective medical trouble dispute legal procedure,the prerequisite is this legal procedure must satisfy the procedure just base element.This article chief feature will lie will be fair,the fair medical trouble dispute legal procedure construction to take the master line,take the right of suit safeguard,the expert evidence procedure rationality return,the onus probandi fair assignment,the medical trouble dispute lawsuit decision already will sentence the strength as the point of application,mainly will adopt the comparison test and the empirical study method,will carry on the thorough discussion to medical trouble dispute legal procedure's restructuring.The first chapter medical trouble dispute this theory.This chapter has defined clearly the medical trouble dispute's basic concept,the definition,the type and so on.This chapter limited the medical trouble dispute to belong to the medical source medical service dispute,to the medical trouble dispute's characteristic,the important document,the origin has carried on the detailed elaboration.This chapter proposed in the medical trouble dispute lawsuit mediation part that after before the medical trouble dispute sues,and sues,may by set up as an attachment in the court professional medical service must disputed the Redressing committee carries on the mediation,by the time through the medicine specialized peacemaker's mediation,melts contradictory intensified from many kinds of channels the medical trouble dispute.This chapter the unique medical trouble dispute lawsuit has carried on the brief elaboration to the civil action.Regarding medical trouble dispute lawsuit sign the limits,based on the procedural law said that one point extremity said that is clear about the discrimination the medical trouble dispute lawsuit litigant's attack defensive measure and the lawsuit sign,position of the litigant fact with presents evidence the law is suitable the power with judge to limit accurately.Judge is suitable the right infringement law or the law of contract to the medical trouble dispute fact has the freedom to decide after deliberation the power,the litigant regarding the lawsuit sign,the lawsuit requested that has the leading power.The second chapter medical trouble dispute right of suit theory.The main research right of suit elementary theory is a foundation,will sue the important document,the lawsuit important document,the right protection important document to carry on clear and the explicit limits.And aims at our country civil action legislation and the judicial practice the present situation which limit,the lawsuit important document and the right protection important document regarding the litigant right of suit confuses,proposed that restructures our country civil right of suit legislation and the theory.Take the medical trouble dispute right of suit safeguard as the goal,this chapter appraises through the medical trouble dispute pretage causes to sue and so on present situations difficultly,proposed that the construction medicine trouble dispute prosecution important document,the lawsuit important document, independence,the separation the entity right protection important document,maximum limit protect the medical trouble dispute litigant's procedure benefit and the entity benefit.The third chapter medical trouble dispute evidence France side theory.This chapter diagnoses and treats the nursing process take the Medical establishment as a master line, analyzes the patient case book,the patient to be injured prominently the body,the death corpse for the carrier book card,matter witness,as well as the medical right infringement expert evidence conclusion,pays great attention to discuss in the medical trouble dispute civil proceedings particularity of the evidence method.The fourth chapter medical trouble dispute appraisal theory.Because the nowadays our country medical service right infringement dispute the medical service administration and the medical service infringement suit system dual rules and regulations,has decided the dualization medical right infringement appraisal system,namely incident of malpractice appraisal and medical right infringement expert evidence.The incident of malpractice appraises is suitable for the medical trouble dispute administration disposal procedure,is also suitable for the medical trouble dispute legal procedure,but the medical right infringement expert evidence is only suitable for the legal procedure.This kind of contradictory medical right infringement appraisal system already enabled medical right infringement dispute's processing to sink into the confusion,will then cause the court in medical trouble dispute's trying,because will accept the different appraisal conclusion,will cause the identical natural historical fact to make the different dispute judicature fact to recognize.Finally, identical medical trouble dispute court,if accepts the different appraisal conclusion to cause its important document fact to recognize not unified,the law is suitable the confusion,will affect the judicial authority eventually.Therefore,this chapter thought that must carry on unified to these two medicine appraisal system the reform.Theory and the principle the incident of malpractice appraisal and the expert evidence has the significant conflict,the incident of malpractice evaluation program which of the medical society organizes is one kind of accurate judicial ruling procedure which likely the Certifying commission carries on.Therefore,the incident of malpractice appraises does not conform to important document of the expert evidence,cannot be suitable in the medical trouble dispute civil action as the appraisal conclusion,then does not belong to civil action's legal evidence method.This chapter believed that in my Chinese medicine trouble right infringement expert evidence procedure,the judicial expert carries on the abuse of authority evaluation program and the appraisal conclusion violate the expert evidence legal principle theory of law,to belongs to the law appraisal important document subjective mistake in its appraisal conclusion to carry on recognized.Therefore,the right infringement expert evidence's expert has surmounted the fact appraisal power,exercised belonged to judge's law to be suitable the power specially.But majority judges exceed authority regarding the expert to corrode judge to recognize the power regarding the mistake law important document,does not dissent, moreover many judges make in the appraisal warrant's request item is author's subjective mistake.In the medical service infringement suit,judge is also glad "cups one hand in the other across the chest to resign" to be suitable the power regarding the author subjective mistake law,entrusts the expert to carry on the appraisal to the medical personnel subjective mistake.The final outcome causes in the medical trouble dispute lawsuit judge and the judicial expert role confusion.This chapter believed that the judicial expert and judge must perform its own functions in the medical trouble dispute civil action,the expert carries on appraisal of the fact,judge carries on being suitable of the legal,the expert assists judge to carry on to the litigant subjective mistake recognized.The judicial expert's responsibility is provides to judge is involved in a case the medical behavior standard medicine standard,the medicine empirical rule and the causal relation,judge in the synthesis Medical establishment rank,time the medical personnel school record and the title,the patient seeing a doctor emergency case and so on carries on the mistake to recognize.The fifth chapter medical trouble dispute onus probandi theory.This chapter unifies the civil substantive law to turn over to theory and the practice the responsibility principle about the abuse of authority,thought that our country Supreme court judicial interpretation and the civil action theorists logically coherent argument is worth the medical trouble dispute onus probandi assignment limits situation of for the onus probandi inversion discussing.In the civil action the onus probandi inversion and in the abuse of authority law the author subjective mistake turns over to the responsibility principle to unify.The majority countries alone legislate the special abuse of authority,has not had the mistake file responsibility principle and the mistake suitably estimated that turns over to the responsibility principle,adapts with this,in civil action onus probandi assignment rule,stipulation of these special abuse of authority suitable onus probandi assignment inversion.The medical service abuse of authority is limited nearly in the mainland legal system country turns over to for the mistake responsibility the responsibility principle,our country "the General provisions of the civil law" is not exceptional.Therefore,to defend the litigant legitimate rights and interests,the servicing procedure to be fair,this chapter thought that the medical service infringement suit must the mistake responsibility principle adapt by the substantive law,the applicable legislation important document classification said the onus probandi assignment rule. For the balanced medical trouble both parties' lawsuit strength,enables their lawsuit status to achieve the equality basically,the law only then stipulated that certain affects judge to prove the appraisal the lawsuit proved the method is auxiliary in presents evidence the patient who in ability is at the weak trend position.This chapter believed that to safeguard the patient benefit fully,strengthens patient's procedural capacity and presents evidence ability, the civil action legislation and the judicial practice must see the proof,the copy clerk through the table to propose the voluntary,the certificate hindrance,the fumble proof theory and the rule are in the weak trend auxiliary the patient,urges judge easy to achieve the probability to establishment of the right infringement fact superiority.The sixth chapter the medical trouble dispute decides discusses mainly after the medical trouble dispute sends the sequela lawsuit and the decision circumstance change carries on the discussion.Occurs after the medical trouble dispute civil judgment already sentences the strength,has the litigant not to be able which sues after meets sends the sequela,must allow to sue again.The medical trouble civil legal relationship dynamic characteristic,had decided after already sentences the strength becomes effective,after the zero hour,has the circumstance change,may also sue again. |
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