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The Study Of The Allocation Of The Burden Of Medical Tort Litigation

Posted on:2012-11-26Degree:MasterType:Thesis
Country:ChinaCandidate:P ZhangFull Text:PDF
GTID:2216330338971704Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
As the burden is called:"the backbone of the civil litigation,"we can see the importance of the burden in the civil lawsuit. And the allocation of the burden is the core of the burden. The general principle of the allocation of the burden is "who claimed, who advocated burden". Due to the particularity of medical tort litigation case, how to distribute the burden not only becomes the focus of the judiciary and the medical profession, but also all key points of discussion. The supreme people's court on several provisions of civil lawsuit evidence promulgated in 2002 with the form of judicial interpretation stipulates medical tort litigation executing the burden of the horse for the first time. The rulings caused great repercussions and controversy. The tort liability law issued in 2009 lists the chapter of "medical liability," in which permits the medical liability implementing fault imputation principle, under special circumstances implementing fault-presuming liability principle, medical tort litigation new distribution burden of proof. The issuance of the law caused more social discussions and fierce debate, with many opponents and supporters. The tort liability in the Medical liability provisions of the fault imputation is against essence justice. And three special circumstances applicable fault-presuming liability principle is non-existing. Causal imputation also lack provisions.This paper thinks about burden inversion on basis of the allocation of the burden of medical infringement of the legislative situation. Medical tort litigation burden inversion is not the root causes of current malicious medical tort litigation and defensive medical behavior, which is not quite adverse, but is a beneficial legal constraints to the part of cure. Although medical tort litigation has some shortcomings in practice, it still has its existing necessity and feasibility. Medical tort litigation execute the burden is the particularly inevitable request and the choice to pursue the justice and realize program benefit and medical behavior. China has the burden of medical tort litigation invertedapplicable medical environment and social environment. Implementing the burden inversion can alleviate the burden. Timely trialing and judging medical tort litigation can alleviate the doctor-patient relationship and have a positive of profound significance for maintaining the legal rights of patients.This paper claims that our medical tort litigation should be adhered to the burden distribution, appropriately restrict the applicable scope and conditions, reasonably distribute the burden of causal relationship and implement limited the burden of the horse. In addition, the allocation of the burden of medical tort litigation system function display can't just rely on itself the reasonable and scientific system settings. Still needs to perfect and run the related system, combine commercial medical insurance, build mutual insurance system, and resolve the infringement disputes introducing to the medical dispute resolution mechanism.
Keywords/Search Tags:medical tort litigation, fault liability principle, allocation of burden of proof, consummate
PDF Full Text Request
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