The Deficiency And Solution Of The Burden Of Proof In The Case Of Infringement Of Medical Damage In China

The standing committee of the national people’s congress promulgate the “Tort Law of PRC”(“Tort Law”) at the situation that the doctor-patient relationship is getting intense increasingly and the number of medical tort suit is growing fast. The Tort Law changed the distribution of burden of proof in “Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings”(“Provision on Evidence”) and reset the rule from reversion of burden of proof back to the general rule. That change is both advanced and discussable.In this article, the author tried to make a solution that acceptable in our nation by discussion and analysis on the following respects.In the first part of the essay, the author stated the different rules in Tort Law and Provision on Evidence.Firstly, the author stated the disadvantages of reversion of burden of proof stipulated in the Provision on Evidence. The disadvantages included a) the doctors were in an inferior position in suits because of the rule; b) it made patients suited too much without a good will; c) it made the defensive medical actions increased, and d) it hindered the development of medical science.Secondly, the author stated about the amendment of burden of proof in the Tort Law and the disadvantages of the amendment. The disadvantages included a) the content of clauses is repetitive; b) the logical of clauses is disordered; c) it lacks of the rules on proof of causality, and d) the system of medical testimony is not reasonable enough.In the second part of the essay, the author introduced and compared the advanced systems in both civil law countries such as German, Japan and France and common law countries such as the UK and the USA.The third part of the essay was about the solution on burden of proof on medical tort suits in our nation. The author provided the following suggestions: a) the burden of fault proof should be improved; b) the burden of causality proof should be stipulated; c) the obligation of keeping and providing the medical data on doctors should be added; d) the medical testimony system should be improved, and e) the changes aforesaid should be accomplished by judicial interpretations and guiding cases.At the end of this essay, the author summarized the main content and theme of this article, and stated the shortcomings in this article which should be improved.