On The Burden Of Proof In Medical Dispute

With the development of medical sanitation system, the improvement of medical secure system and the increasing of people's defensive awareness and legal concept, medical dispute has become a major concern to the whole society. In many of the lawsuits, however, the patients on the victim side have great difficulty in burden of proof due to various barriers, thus they could not provide evidences of medical damage conduct and be compensated effectively for what they had suffered. The principle of inverted responsibility in providing evidence, introduced by judicial interpretations of the supreme law court, has somewhat balanced the reciprocity between hospitals and patients by increasing the weight of the responsibility on the side of medical organizations, hence extended protection of the patients and embodied impartiality and justice of law. However, one-sided responsibility of providing evidence might lead to partial judgment due to the speciality of medical action. Rational distribution of responsibility of providing evidence can only be achieved by bringing the initiative of the judging capacity of the judges, their subjective initiative as well as their free adjudication depending on the case. By discussing the basic theory of providing evidence and practice of medical compensational lawsuits in foreign countries, this thesis tries to balance the interest between the hospitals and the patients so as to improve the medical cause healthily. The thesis, with approximately 30,000 words, consists of four parts as shown below.Part I. Introducing the responsibility of providing evidence in medical dispute by analyzing the concept of medical dispute and its lawful characteristics, on the base, the author thinks the civil nature of medical compensational lawsuits should be an obligation founded on tort and introduces the necessity and the importance of the responsibility of providing evidence.Part II. Responsibility and distribution of burden of proof. Introducing its origin, concept, and characteristic and illustrating its dual meaning."where burden of proof lies, where losing a lawsuit lies",which points out the important significance. But the distribution of burden of proof is the core. So, there are many theories that provide lessons for the judge overcoming the dimness between the true and the false in the litigation.Part III. Comparison of domestic and foreign cases. The part introduces the basic provisions of the distribution of burden of proof in foreign countries in order to provide lessons for medical compensational lawsuits in our countries. Present judicial interpretations balance the reciprocity between hospitals and patients by increasing the weight of the Tesponsibility on the side of medical organizations. However, one-sided responsibility of providing evidence couldn't adapt the speciallity of medical action. by bringing the initiative of the judging capacity of the judges, their subjective initiative as well as their free adjudication in "the practice, the value of pursuing the social rationality in the case.could be achieved.Part IV. Improving the system implemented in our country and the work of judges. The parts Teflect inverted responsibility in providing evidence that is viewed as a preface of the innovation of proof in the eyes of the law. At the same time, the thesis thinks the seventh article of《provisions of proof》has awarded the judge with free adjudication, It has very strong fulfillment and the individual case, By taking up concrete the case in according to fair principle and honest principle, Comparing the ability of offering proof of both parties, exercising their free adjudication well, assuring burden of proof, overcoming the dimness between the true and the false, the judge could avoid this rule coming to a deadlock. By those, it can achieve real equality.