Font Size: a A A

Study On The Allocation Of The Burden Of Proof For Medical Tort In Our Country

Posted on:2014-08-23Degree:MasterType:Thesis
Country:ChinaCandidate:L H JiangFull Text:PDF
GTID:2256330392963807Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In the field of medical tort relief, due to the complexity of the medical behavior and theparticularity of the doctor-patient relationship, the allocation of the burden of proof for therealization of the rights of the parties the claim acts a very key role. In2002the supreme people’scourt provisions about civil action evidence established the medical tort litigation in our country:Medical institutions assume there is no causality between medical behavior and damage results,and there is no fault of the burden of proof. This provision reduced patients’ burden in thelitigation of proof, but increased the burden of proof of medical institutions, which encounteredstrong opposition from medical professionals and some of the jurist. Along with the medicalsystem reform in our country in2009, the tort liability law under the new situation on the issueof allocation of evidential burden in medical infringement has made new rules and has played arole to ease the doctor-patient relationship and promote social harmonyBased on the tort liability law, this article has in-depth study on our country’s medicalinfringement problems of distribution of evidential burden. Full text is divided into four chaptersexcept preface and epilogue.The first part introduces the basic theory of medical tort burden distribution. First of all, itrefers to the burden of proof of medical tort and define the concept of burden of proof allocation;Secondly, this chapter describes the burden of proof allocation theory and its development, andemphasizes the significance of medical tort burden distribution; Again the particularity ofmedical tort burden distribution was analyzed, finally combining with the characteristics ofdistribution of burden of proof in medical tort, and summarizes influencing factors ofdistribution of burden of proof in medical tort lawsuit.The second part reviews the evolution of China’s medical tort burden allocation, which hasexperienced three shifts. Then this part analyzes the positive role and negative influence of themedical tort onus probandi inversion in practice, particularly highlighted in "tort liability law" onthe rationality of the medical tort rules of allocation of evidential burden in our country.Simultaneously, analysis shows that the fault presumption rules still exist, operability is notstrong, the causal relationship between lacks of regulation, standard of fault is notcomprehensive, etc.The third part introduces Germany, the United States, Japan and France on the allocation ofmedical tort burden of special rules, and further compares regulations of aforementioned country,summarizes the similarities and differences in medical tort burden distribution system, which inturn consider whether the medical tort litigation of burden of proof allocation can be used forreference in China.The fourth part puts forward Suggestions of perfecting our country’s medical tort burdendistribution. Refine this paper draw lessons from the practice of Germany, the allocation of theburden of proof requirements, from the certificate and the fault of causality, by establishing acausal relationship between the burden of ease system and prove that the fault elements for tablerules, so as to decrease the patients proof standard: as long as the patient to a certain degree ofproof, can be determined to complete the burden of proof, and then on the maximum balance thelegitimate rights and interests of both doctors.
Keywords/Search Tags:medical tort, allocation of burden of proof, Tort liability law, the burden ofease
PDF Full Text Request
Related items