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The Study On Allotting The Burden Of Proof In Medical Dispute

Posted on:2007-12-29Degree:MasterType:Thesis
Country:ChinaCandidate:C B LiFull Text:PDF
GTID:2166360185980718Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Burden of proof is a disadvantage consequence of litigant claiming for the fact. The aim of allotting burden of proof lies in as following: as for substantive law, realizing the aim of substantive law that is making the judgment be close to really fact: as for procedure law, justice procedure and economical litigation. The function of allotting burden lies as following: one is judgment for court and the other is guide for other party in sue. Allotting burden of proof in medical is a special model. Nowadays, the model of allotting burden of medical dispute law is a model called reverse distributing. However, it is proved to be a imperfect method by practice of three years. The defect is as listed blow: lack of theory base, no equilibrium in value choice, no clear promise in allotting, and in practice, granting a judge too much power of free judgment. Those defect is resulted from particular difficulty in allotting burden of proof in medical dispute law, I.e. difficulty in adopting proof arising from medical identify result being unjust, difficulty in confirming proof because of lack of expert system and difficulty in finding proof for its specific. When have analyzed the method of alleviating the patient's burden of proof, specific methods are proposed. Author suggest that court should accept the sue only if the patient prove the cause to the degree the average person regard the cause true, the burden of proof is bored on medical organization when the being proving fact provided by patient is highly possible; the burden of proof is bored on patient when being proving fact provided by patient is less possible but the fact is only clue and medical organization take on responsibility of explanation; and the burden of proof is bored on the patient when the fact is impossible. Author proposed also method to form a complete set, which is establishing the principle of free prove, dividing the cause into cause in fact and cause in law and establishing the standard for possibility.
Keywords/Search Tags:Medical dispute, Distributing the burden of proof, Standard of possibility
PDF Full Text Request
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