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New Opinion Of The Rule Of Imputation In Medical Damage Liability In China

Posted on:2012-08-15Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhangFull Text:PDF
GTID:2166330338959694Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As people's consciousness of protecting themselves strengthening along with the medical damages increasing, issues of medical disputes become one of the hot topics. NPC Standing Committee issued The Tort Liability Law in December 26th, 2009, which rebuilds the law system of medical damage liability. But concerning to the rule of imputation in medical damage liability and the components of this liability, the theory viewpoint is still not unified. This thesis is composed of five parts discussing about the concept of medical damage, the rule of imputation in medical damage liability and its components and analyzing part of The Tort Liability Law concerning to the foresaid issues.Chapter one, the meaning of medical damage and the nature of medical damage liability. Since the"medical accidence"and"medical mistake"are used in practice which messes up the meaning of medical damage, it is important to define it after The Tort Liability Law issued. The nature of damage liability combines the contractual liability and tort liability. The patients can consult the theory of claim coincidence and choose at their willing.Chapter two, according to the theory and The Tort Liability Law, the rule of imputation in medical damage liability is the fault liability principle only. There are no conditions and needs to conduct the non-fault liability principle and fairly principle in china for the moment. As to the presumed fault, it is not a rule of imputation but a regulation belongs to the burden of proof. It can be used in the system of medical damage liability but it needs some restrictions.Chapter three, the components in medical damage liability. It includes the following three elements: medical fault, medical malpractice, the causality between medical practice and medical damage. This article adopts the subjective and objective fault combining principle to define the concept of damage fault and conducts an objective standard in appraising the damage fault. Chapter four, comments on Article 58 of The Tort Liability Law according to the foresaid theory and opinion. Article 58 is not applying the presumed fault regulation as people think but the regulation of proving impeding. Because of the present non-unified theory concerning to the medical fault plus some uncertain expression, Article 58 still need to be discussed and get improved.Chapter five, the conclusion of all this article and suggestions about the medical career development and medical jurisprudence improvement.
Keywords/Search Tags:Medical damage, fault liability principle, Medical faul
PDF Full Text Request
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