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The Imputation Principal And The Allocation Of The Burden Of Proof Of Medical Treatment Damage Liability

Posted on:2013-01-07Degree:MasterType:Thesis
Country:ChinaCandidate:F LiFull Text:PDF
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The implementation of the "The People’s Republic of China Tort Liability Law" illustrated the medical treatment damage liability as one of the special chapters since July1,2010, which is one of the most substantive law establishing the principle of fault liability as it’s imputation principal, it’s essentially established as the procedure law for medical treatment damage liabilitys’allocation of the burden of proof.These rules aim to resolve the provements’predicament for patients, to relieve the contradiction between doctors and patients from both theoretical research and judicial.practice, having great significance. But the existing provisions still expose some problems and insufficient, if served as the solution to the long-term mechanism of doctor-patient conflicts.The Analysis from the legal essential component classification theory, the Basis of the allocation of the burden of proof in Procedural Law is imputation principal regulation of Substantive Law, that is to say imputation principal determine the allocation of the burden of proof,meanwhile, the allocation of the burden of proof reflects The imputation principal.Totally,the development course of the medical treatment damage liabilitys’imputation principal and allocation of the burden of proof can be divided into3periods:fault liability and "the regularity" perid、fault liability and "the Reversion" period、fault liability and "the regularity" regressed period. Long-term practice has proved whatever method choosed, imposed the burden of proof on patients or reversed on doctors, can not balance the benefit of interest between the patients and the doctors well. Thus,we just need to find the balance between them:insists on the fault liability and imposed the burden of proof on the patients,which can not only conforms to the principles of fairnes and good faith,but also safeguars their legitimate rights and interests. By discussing the basic theories about burden of producing evidence and the practice of the resolution of medical treatment damage dispute in foreign countries and other areas, tries to introduce the burden of proof reliving method into the system and identifies "medical standards at the time" and "examination which is met the treatment to nurse standard",perfects the futher assistant expert system,and adopts judicial interpretation immediately...
Keywords/Search Tags:medical treatment damage liability, imputation principal, allocation ofthe burden of proof, further perfection
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