Study On Distribution Of Burden Of Proof In Medical Tort Litigation

Besides introduction and conclusion, the thesis can be logically divided into four parts:The first part puts forward in the concept of the distribution of burden of proof in medical tort litigation. It begins with the conception and traits of medical tort litigation, steps forward into the constitutive requirements of medical torts on the Chinese substantive law, and then, the conception and distribution principle of burden of proof is introduced. At the same time, it outlines the situation of distribution of burden of proof in China's Civil Procedure Law, and from which the conception and traits of distribution of burden of proof in medical tort litigation are presented.The second part is a comparative study of distribution of burden of proof in medical tort litigation. It consists of'Prima-Facie-Beweis'theory from Germany,'Res Ipsa Loquitur'principle in American tort law, and'Approximately Presumption'principle in Japan. Through the research on the different conceptions and usable conditions of these theories, it gives the inspiration of how to deal with the distribution of burden of proof in medical tort litigation in our country.The third part regulates the changed courses of the distribution of burden of proof in medical tort litigation in Chinese law and comments on the distribution theories of different period. From'he who is affirming must prove'stage to'the inversion of burden of proof'stage to'a brand new'stage, it introduces different meanings of the theory at different stages. Through the analysis, it concludes that the burden of proof can not be well distributed by relying on one theory alone. With the production and use of inversion of burden of proof theory, the contradiction between tow parties is resolved to a certain degree, but any coin has two sides, the inversion of burden of proof also reflects its own limitations and defects. At last, it bring forward the duty principle of'fault and fault assumption'which from China's Tort Liability Law, which, to a great extent, can balance the status of two parties in litigation.The fourth part puts forward some assumptions, bases on which, can re-build the distribution of burden of proof in medical tort litigation in our country. Through the analysis and demonstrate of advantages and disadvantages to the theories of distribution of burden of proof in medical tort litigation at different stages both in china and other countries, and in view of value orientation in the burden of proof distribution system in medical tort litigation, it combines the conditions of our country and makes some helpful exploration in respect of improving our current regulations. In more specific terms, these considerations include building and improving a medical management system which is adaptable to legislation of our country, improving medical personnel's legal consciousness, adopting no-fault responsibility and establishing exemption system in medical field, adopting inversion of causation in the limited area, putting more emphasis on spoliation of evidence theory in the distribution of burden of proof and expanding its scope of application so as to balance the benefits of two parties in litigation.