The Reserach Of Medical Dispute Arbitration System In China

In recent years, there are endless of "medical events" which have been increasingly affecting the socialharmony and stability. Apparently, it is becoming a critical issue in front of both law and medicine field thathow to solve the medical dispute efficiently and fairly. China had revised the “Medical MalpracticeManagement Regulation” in2004. Unfortunately, the three dispute resolutions that provided in thisregulation including negotiation, administrative mediation and litigation are not detailed enough andunlikely to undertake the responsibility of solving all the disputes. Therefore, it is necessary to seekinganother more efficient solution to solve the medicine malpractice contradiction and dispute apart fromimproving the existing mechanism. Considering the particularity of medicine dispute, arbitration, among allthe non-lawsuit resolution mechanisms, features confidentiality, efficiency and specialty that have to beembodied as first priority.The thesis consists of four parts except foreword and conclusion:The first part briefly introduces the characteristics of China medical disputes in terms of particularity,specialty and frequency. It also summarizes the current situation of medical disputes in China: theincreasingly medical violence, the difficulty of processing disputes, the heavy compensation burden ofhospital, in an attempt to draw more attention from people in the law field, eventually develop a moreeffective solution for the medical disputesThe second part analyses the limitation of the current three dispute resolutions that provided in“Medical Malpractice Management Regulation”: Negotiation lack of supervision procedure, it cannotachieve settlement agreement easily; the neutrality of the Health Administrative Department has beenquestioned by the public; the mediation has been known as long-time lasting and inefficiency. However, theadvantages of arbitration are professional, efficiently, confidentially and flexibility, which compensate thelimitation of the above three resolutions and right suit for medical disputes processing.The third part discusses the regional exploration of medical dispute arbitration mechanism in China.On the basis of introducing the institute setting, arbitration procedure and operation situation of the threeregional medical dispute arbitration mechanisms at Tianjin, Ganzhou and Shenzhen, it summarizes thecharacteristics and achievement of our medical dispute arbitration practice. It also points out that the regional exploration of medical dispute arbitration in China has been facing issues of weak social basis,strong resistance, etc. which indicates direction for the system design of China medical dispute settlementmechanism.The fourth part puts forward some ideas about the system design of China medical dispute arbitration,on the basis of summarizing the problem we have been meeting in regional exploration, as well as using theexperience of other countries for reference. Firstly, it suggests setting up complete legislation, judicialand social security system to make sure the medical dispute arbitration mechanism running effectively.Secondly, it presents clearly that China medical dispute arbitration systems should follow the principle ofparty autonomy, mediation first and balancing the benefit between patients and medical institutions. Thirdly,voluntary type of arbitration mechanism is recommended. In terms of arbitration mechanism setting, itsuggests to make full use of existing resource of arbitration to simplify the arbitration institutionestablishment procedure. Empower the arbitration committee for medical dispute arbitration. In addition, itneeds to take professional as first consideration criteria and select some retired judges, lawyers, lawprofessors, doctors and medical experts of high moral ethics beyond of regional restriction to takearbitrators position. At last, it discusses the medical dispute arbitration procedure design in terms of scopeof accepting cases, the composition of the arbitration tribunal, the reach of arbitration agreement andburden of proof.