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The Study Of Validity Of Fault-presuming Princile In Medical Tort Liability

Posted on:2012-10-21Degree:MasterType:Thesis
Country:ChinaCandidate:L MaFull Text:PDF
GTID:2166330332497054Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
For a long time, there are different opinions about the problem of what principle of culpability in medical tort liability should be applied, some scholars believe that we should use the fault liability principle, some scholars think that we should insist on the fault-presuming principle, also some scholars think no-fault principle should be applied. In our legislation about this question, the" regulation "and "solution" both insist on the principle of fault liability principle. Evidence stipulation does not use the same principle. What used in evidence stipulation is the fault-presuming principle. The "tort liability law", which promulgated not long ago think that the fault liability principle should be used primarily, and the fault-presuming principle should be used secondarily, whose rules changed the regulations in evidence stipulation. The main purpose in this paper is to demonstrate that:the fault-presuming principle should be mainly applied in medical tort, not the fault liability principle is used primary and the fault-presuming principle is used secondarily, which the tort liability law thinks.The paper has discussed about this problem from five respects. The first part demonstrates the legitimacy of using the principle of the fault-presuming principle. It is divided to two aspects. One of the aspect analyses this from the angle of the tort liability law theory, which is divided into four small directions to demonstrate this question. Those are:The fault-presuming principle meets the theoretical basis of imputation, the fault-presuming principle meets the requirement of tort liability law functional, the fault-presuming principle complies with the requirements of the allocation of the burden of principle and the fault-presuming principle meets the development trend of the medical tort liability. The second, from the point of view of economics theory to analyses this problem, which is also divided into three little directions, those are:the fault-presuming principle conforms to the requirements of benefit measure theory, the fault-presuming principle meets the trend of lose share theory and the fault-presuming principle meets the theory of economic foundation governs the superstructure. The second part demonstrates the fault-presuming principle from the angle of its justification to reality, which also from four respects to demonstrate it, that is before the enacting of tort liability law, fault-presuming principle has become the medical tort liability imputation principle, that is to say, the fault-presuming principle has the base of practice, the fault-presuming principle's applicable is advantageous to ferreting out the truth. The fault-presuming principle's applicable is beneficial to judicial, the fault-presuming principle's applicable is promoting the development order of medical record to elaborated the legitimacy in medical tort liability to apply the fault-presuming principle. The third part, from the relationship of fault-presuming principle and some systems, discusses the possibility in medical tort liability that is suitable for fault-presuming principle. Because the medical tort is suitable for the fault-presuming principle, that will made some problems to medical institutions and their staff. In order to reduce their pressure, we can take some system, for example:liability insurance system and quota compensation system. We can have some place to be suite for fault-presuming principle. The fourth part, from problem and correction about tort liability law's 58 item, discussed the proposition. The fifth part made a summary about the fault-presuming principle used in medical tort.
Keywords/Search Tags:Medical Tort Liability, Fault-presuming Principle, Burden of Proof
PDF Full Text Request
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