Medical Tort Liability Identified In The Risk Allocation Study

The medical tort is an "old but still hot issue". Tort Liability Law of People's Republic of China specifically set up the ChapterⅦof "medical liability" to make the detail provisions on the contents of the medical tort liability. It is different to make an over-optimistic conclusion whether this problem can be successfully solved due to the new law in short time. However, from the legislative process of Tort Liability Law, it is obviously a very valuable step for legal system building.German sociologist Ulrich Beck's risk society theory provides a new perspective for people to study social and legal issues, and also provides a very valuable reference standard for rational evaluation of the legal system. This paper attempts to proceed from risk society theory, to discuss the risks allocation during the identification of current medical tort liability. And based on the understanding of ChapterⅦof Tort Liability Law, the author gives his own opinion on the issues of risk allocation during the identification of current medical tort liability which in the hope to interpret the principle of fairness and justice of law, and also provide reference to settlement of new disputes which may occur in the future. This article is divided into three chapters:The first chapter takes the problem of modern health care under risk society as a starting point, binding the theory of risk society to describe the importance of risk awareness to various types of modern careers, then describes how to allocate risks reasonably, as well as the significance of solve or reduce risk from the system. And based on this, combined with the basic characteristics of medical tort, the chapter then discusses the functions and significance of reasonable risk allocation during the identification of medical tort liability.The second chapter analyzes the risk allocation during the identification of medical tort liability in current law and the history of the relevant legislation, in which refers to the debate on ChapterⅦduring the legislative process of Tort Liability Law which reflects the changes of legislators and academics' cognition and attitude on this issue. Then this chapter analyzes the principles of risk allocation in detail which is reflected from the current legal framework mainly constituted by ChapterⅦof Tort Liability Law.The third chapter is about the rationality analysis on the risk allocation in current legal system relating to the identification of medical tort liability, based on which the author puts some improvement proposals to this issue. By deep analysis, the author hopes these proposals can provide some theoretical reference to the improvements of legal system and the proper settlements of medical tort disputes.