On The Judicial Conflicts Resulting From The Medical Damages Disputes In China And Their Reconciliation

The path of my thinking in this paper is that, from the view of trying the cases, I first show the judicial conflicts caused by the medical disputes; from both the legislative and judicial attitude, and from the interests relationship between doctors and patients, I analyse the causes of the stated problem; and then, starting from the development and changes of the physician-patients relationship, I come to the thought of how to solve the relevant problem, and thus, by empirical analysis, deductive reasoning, the comparative study etc., arrive at the conclusion that the stated conflicts problem be solved through the reconciliation within the system concerned. There're three parts in this paper as follows:In the first part, I put forward the problem in which the judicial judgment of the medical damages disputes show conflicts in three aspects, which are, first, the trial court proceedings conflicted with the purpose of the plaintiff's law suit; second, the problem arising from the share taken in the burden of proof, that is, the two identifications conflicting with each other, and the lacking of legislative law for the rules of evidence giving; and third, the deviation from the law and justice caused by the two different standards of compensation.In the second part, I analyse, in three levels, the factors which account for the problem. Firstly, the seeming reason, that is, the dual application of the law; secondly, the reason for the dual application of the stated law resulting from the system in legislation and administration of the justice; and thirdly, the reason deriving from the background of the physician-patient relationship, which affects the establishment of the system concerned.In the third part, I came to the thought of how to solve the above-mentioned problem. From the tendency of the dynamic development of the physician-patient relationship in china, I choose the way of solving the problem through reconciliation within the frame-work of the existing legal system, which is dealt with in tow parts: first, I advocate unified concept of the administration of the justice by solving the medical damages disputes by civil law, then, aiming at concrete system, I put forward a new proposal about a system innovation through coordination and readjustment, which consists of three points, firstly, to determine the application either of civil law or of administrative law in accordance to the choice by the patients of the two different disputes settling mechanism, secondly, to unify the judicial identification as well as the standard of the fault determining and to carry out a comprehensive judgment by bringing into consideration the level of development of medical theories and medical practice environment' in determining the objective behavior manifested by the fault committed, and to introduce a system by which specialists witness are invited as well, and thirdly, to make legal complements in legislation for the rules of burden of proof for the medical damages, and finally, to set unified civil compensation standards for the medical damages, which might be slightly lower than the general standards for physical damages, but should be higher than that stipulated in the , therefore, coordinating and balancing the favorable and unfavorable matters for the two different disputes settling mechanisms.