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The Applicable Study Of Article 58 Of The Tort Liability Act

Posted on:2014-09-18Degree:MasterType:Thesis
Country:ChinaCandidate:T J DanFull Text:PDF
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Element of fault has always been an important and key factor in the analysis of the constituent elements of medical damage liability. There was continuous controversy with respect to which imputation principle should be applied to the medical damage liability. The Tort Law as officially implemented on July1,2010, has been in effect for more than two years. The provisions of Chapter VII of the Tort Law relegates medical damage liability as a kind of special tort liability, and changes the imputation principle as established by the previous law. In this Chapter, Article54provides that the fault liability principle should be the main imputation principle in determining the medical damage liability. Article58further provides that under certain three particular circumstances, the fault presumption principal should be applied to instead. However, after the promulgation of Article58, the legislators as well as judicators and scholars have different understandings toward the same. Moreover, the wording of the Article itself also brings difficulty to the comprehension of the Article and its application. Therefore, this Article intends to analyze Article58and its application; to clarify how to use Article58in medical damage litigation as well as to expect the reconstruction of the harmony and trust relationship between the doctor and patient through the efforts of various social sectors.In addition to the Introduction and Conclusion part, this Article is divided into the following four chapters:Chapter Ⅰ:The historical development of PRC medical damage liability law system. This chapter is divided into three sections, respectively introducing the historical development of the applicable scope of PRC medical damage liability, the evolution of its imputation principle as well as the promulgation process of Article58. This chapter mainly uses the comparison analysis method to contrast relevant regulation of Tort Law with previous laws and regulations.Chapter Ⅱ:The interpretation carried out by various social sectors. This chapter is divided into three sections, respectively introducing the legislators, people court and famous scholars’ understanding of Article58, and through which to find the problem embodied by Article58.Chapter III:Understanding of Article58and its problem. This Chapter has five sections in total, and is the core part of this Article. This Chapter mainly discusses author’s opinion of Article58and analysis the problem existed in such Article. The author first introduces the summary of fault presumption principal, and then analysis the detailed provisions of Article58one by one, discussing the problem and its jurisprudence basis, including the misuse of the word "因", three situations as listed in the Article should rather use fault liability principle, and etc.Chapter Ⅳ:Thoughts on the application of Article58. This Chapter is divided into three sections. First, the author raises two real cases which apply the Article58and analyzes the features of the court judgments. Then, the author analyzes the difficulty as exist in raising the proof when using Article58, and claims that we should make use of the medical damage evaluation system in medical damage litigation. At last, the author rethinks the social effects of using Article58. Whether the goal of restricting the abuse of litigation and defensive medicine may realize or not, it remains to be seen how to apply the provisions of Article58and other relevant Articles by the judicators in practice.
Keywords/Search Tags:Medical Damage, Fault Presumption, Medical Records
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