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Explore The Burden Of Proof In Medical Tort Litigation

Posted on:2015-06-10Degree:MasterType:Thesis
Country:ChinaCandidate:X R LiuFull Text:PDF
Abstract/Summary:PDF Full Text Request
In recent years, the medical dispute has been increasing, resulting in medical disputesrelated laws and how to set a fair and effective, how to protect the patient and the medicalinstitutions and medical personnel to the legitimate rights and interests of both become socialhot issues, and the medical tort litigation of burden of proof in relation to the action principleof responsibility, therefore the legal profession have a consensus, the burden of proof largelyrelated to the success or failure of a case.Our view of the distribution of burden of proof in medical tort lawsuit mode after severalimportant changes, from the1986promulgated the "Regulations of the people’s Republic ofgeneral principles of national law"106th paragraph second: citizens, legal persons faultencroach upon state or collective property, infringement of property, person, shall bear civilliability, combined with the "PRC Civil Procedure Law" sixty-fourth article shows, medicaltort belongs to the general tort, so take "who advocates, who proof" principle; to2002theSupreme People’s court "several regulations on civil litigation evidence" in the first paragraphfourth8provisions: medical tort litigation arising out of acts there is no causal relationship,and there is no medical mistakes bear the burden of proof between from medical institutions,medical behavior and the harm, it established the principle of burden of proof in medical tort;fault presumption principle and then to "the people’s Republic of China tort liability law" afterthe introduction of the burden of proof and the conditional principle.The distribution of burden of proof in the medical tort in foreign countries can be found,some countries in the law basic tend to reduce the burden of proof in patients, so as to betterprotect the interests of the patients. Most European countries for "fault liability", the countriesof Anglo American law applicable "distribution indicates that responsibility","the principle ofpresumption of fault in Japan is probably","Germany is apparent that" rule. While China’stort liability law of burden of proof of the existence of fault to medical basic transfer to the patient, whether this will aggravate the patient of the burden of proof? Whether it will affectthe plaintiff damages compensation?This, combined with the present situation of medical care in China, learn from foreignadvanced experience, can improve the allocation of the burden of proof of medical tort in ourcountry from many aspects, perfect the judicial interpretation, increase the discretion of thejudge, establish the system of compulsory insurance insurance institutions involved in theproof mechanism, establishing evidence storage and other related systems, learning advancedmanagement experience from the foreign, improve the distribution of my the burden of proofin medical tort, protect the interests of patients so as to better promote the development ofmedical career, healthy and stable.This article from the1986promulgated the "general rule of the civil law" to the present,to study the relevant legal provisions on the tort liability disputes of medical burden of proofof all the legal category, modify the system analysis of the legal provisions of the significanceand defects, based on foreign tort liability on the dispute of medical burden distributionprinciple, comprehensive analysis of the theory and reality, puts forward some suggestions onChina medical tort disputes and improve the allocation of the burden of proof. The proposedthe establishment of compulsory insurance insurance institutions involved in the proofmechanism for innovation.
Keywords/Search Tags:Medical tort, The burden of proof, Distribution system, Consummate
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