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Studies On The Burden Of Proof Distribution Of The Compensation For Medical Damage

Posted on:2013-09-12Degree:MasterType:Thesis
Country:ChinaCandidate:B L GuoFull Text:PDF
GTID:2246330374474442Subject:Law
Abstract/Summary:PDF Full Text Request
In recent years, medical disputes have increased year by year, andhave been widespread concern in society. Properly handle medical disputesboth, with regard to both doctors and patients the interests of the measure,are also related to the healthy development of the medical and healthyundertakings and medical public health interests of the broad masses ofthe people. In medical disputes, medical damage is the most important,most typical class of disputes, how to deal with good medical compensationproperly is a very difficult work. With the improvement of China’s legalsystem and people’s legal awareness, more and more people resort to legalproceedings for medical compensation. Justice, so as to maintain fairnessand justice last line of defense in the field of medical damages, is boundto play an indisputable role in ending the interest divergent, not onlyto balance the interests of both doctors and patients which should be madeto promote a harmonious society. Commonly known as "lawsuit is to playthe evidence," the evidence is the mother of litigation, which shows theimportance of the evidence in the proceedings. As an old saying goes that:"The burden of proof is the backbone of the civil action, which shows thatthe burden of proof plays an important role in the proceedings, and even almost to the decision of the victory of the entire proceedings. Medicalaction for damages, on the one hand, patients in the burden of proof havea serious "improper weapons " phenomenon, belonging to absolutelyvulnerable groups; moreover, their rights of action are legal to givespecial protection; The other hand, health care has a high degree ofprofessionalism, exploratory, high risk, the relative uncertainty of theinvasive and damaging legal rights and obligations defined in closerelationship with the development of the industry as a whole. So whetherit is in the field of medical jurisprudence in trial practice, exploringmedical compensation burden of proof allocation is of great significance.This article is to start from the burden of proof of medical damage,balance to both doctors and patients’ the rights and interests of themain line, has drawn on relevant theoretical research results andexperience in judicial practice, some of the practical approaches of thetwo legal systems of advanced countries aim at the medical action fordamages of the distribution of the burden of proof, as well as the existingprovisions of our law on the burden of proof of medical action for damages.I have put forward my own view on the development of damage compensationproceedings the burden of proof on medical care. This paper is dividedinto four chapters, about twenty thousand words.The first chapter is an overview of medical harm and the burden ofproof, and discusses the meaning and connotation of the burden of proofof medical harm. Clinics damage is the most typical type of medical damage,the paper mainly discusses the diagnosis and treatment to damagecompensation for the allocation of the burden of proof. The burden of proofis divided into objective burden and subjective burden of proof. Theobjective of the burden of proof is the legal consequences of the ownership, with which the paper mainly offers.The second chapter is the theory of foreign major developed countries on the allocation of the burden of proof, as discusses the main principlesof the Two. The highlights of the USA and France on the "facts speak forthemselves fault" principle, Germany and France on the table in the proofof the theory of "theory, the theory of presumption" about Japan and France,"the burden of proof of the major clinics negligence conversion”.The third chapter is the allocation of the burden of proof of medicalaction for damages which aim at the distribution of the burden of proofof medical action for damages from fault liability to the burden of proofupside down "to the general fault liability" and "conditional presumptionof fault" such a process.Chapter IV of medical damages litigation the burden of proof perfect,the distribution of the burden of proof in order to reduce the patient’surden of proof, the balance of interests to both doctors and patientsshould give full play to the judge’s free evaluation of evidence and theapplication of different distribution according to different situations.
Keywords/Search Tags:Medical damage, The onus of proof, The burden ofproof distribution
PDF Full Text Request
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