On The Inversion Of Onus Probandi In Medical Damage Compensation

On the process of building democracy and legal system, Self-awareness and civil rights have been the rule in modern Chinese society. In the field of medical treatment, Sufferers pay more attention on their private rights on one hand, and the lag of specific statutes on the other hand, therefore contradictions took place frequently and become sharpen more and more. In this way, the number of civil cases between sufferers and hospitals blows up in recent years. Society has been focusing on the matter which to enact a perfect statute on the civil dispute. On 1st September 2002, State Department constituted the 'Directive on medical malpractice', which can be deemed to do something on the preventing issues. However, the Directive's defect is so obvious, in some extent, nobody can distinguish it from an administrative order and it would seldom be handled as a statute in civil cases. The paper refers to legal practices in the world, focus on the four parts of the theory on converting the burden of as following:Ⅰ.Introduction of the theory on converting the burden of proof and the necessity of the theory.In this part, author ought to illustrate the unbalance between sufferers and medical institutions on the basis of the allocation on the burden of proof and the legal practice in reality, and induce to the basis of 'converting the burden of proof' theory i.e. the burden of providing proof should be imposed on the medial constitutions.Ⅱ.The standard of the theory on 'converting the burden of proof', and the implementation of the theory. Referring the legal practices under common law circumstances and continental law system, author would like to answer the questions about how to affirm the causal nexus between medial deed and damage effect, and how to deem negligence actions.Ⅲ.The immunity of medical malpractice. The immunity should be subdivided into general and specific ones.Ⅳ.The disadvantages of the theory on 'converting the burden of proof' in enacting and legal practice, also relevant suggestion and the matter should be care of.