On The Improvement And Perfect Of Our Country's System Of Reversion Of Burden Of Proof In Medical Lawsuits

In the civil suit in China, we take the measure of "The burden of proof is upon theparty who claims" as to providing evidences. But it is obviously unsuitable for somespecial litigation cases, such as medical tort lawsuits. Because medical tort lawsuits relateto general medical knowledge, which puts those patients who have limited knowledge ofmedical treatment in passive positions in medical tort lawsuits. It is unfair to use "Theburden of proof is upon the party who claims". Thus as a supplement, the system ofreversion of burden of proof comes to the stage.In2002, the Supreme People's Court introduced a law Some Regulations of Proof ofthe Civil Suit, which from the law explicits the divisions of the burden of the proof ofmedical tort lawsuits, that is the reversion of burden of proof. This regulation arouseswide disputes in the society. From this regulation, patients and some scholars unilaterallybelieve that medical tort lawsuits apply to the system of the reversion of burden of proofand the burden of proof all goes to the doctor, not to the patient. Though this systemalleviates the patients' burden of proof, satisfies the value of protecting the weak anddoing justice, it causes a number of problems. Therefore, there's essential practicalsignificance in researching the system of the burden of proof in medical lawsuits. Thispaper introduces the theory of the burden of proof and the reversion of burden of proof indetail. It analyses the rationality and the limitations of the reversion of burden of proof inmedical tort lawsuits in China. And it also compares different regulations of the burdenof proof in medical tort lawsuits in foreign countries, such as the "Apparent proof theory"in Germany Law, the "General principle of presumption" in Japanese Law and "Theprinciple of the fact that negligence" in English and American Law. Thus this paperexpects to come to a conclusion that whether the medical tort lawsuits apply to thesystem of the reversion of burden of proof in China and whether this system can beimproved particularly. It also aims to find the balance point of the doctor and the patientand to give some theoretical help and to have effects on improving the system of theburden of proof in medical tort lawsuits.