Research On The Presumption Of Fault Of Medical Damage Liability

Medical damage liability, which is stipulated in Chapter VII in "Tort Law", has aroused a lot of discussion in the embryonic stage among the medicine, the theoretical circle of law, the practice of law and other groups related to this problem, however, debates on this problem did not stopped after its formal implementation, especially in Chapter VII, Article58, the discussion of presumption of fault of medical institutions is very intense. The dispute of presumption of fault of the medical damage liability focused on the following areas:First is about the imputative principle of Article58in "Tort Law". Second is whether the presumption can be rebutted or not of Article58in "Tort Law". Third is about problems which existed in the legal practice. For the first problem, there are several theories in Legal circles, such as theory of unitary imputative principle, theory of dualistic imputative principle, theory of trialistic imputative principle and so on, but this paper holds that the medical damage liability is to apply the fault liability principle. For the second problem, the legal circles argued among the theory of fiction, the theory of irrebuttable presumptions of law and the theory of rebuttable presumptions of law, but this paper approvals the third theory. For the third problem, this paper plans to find rules through the judicial practice before and after the formal implementation of "Tort Law", try to make out the influence to the judicial practice by the implementation of "Tort Law" and its problems. As for the above problem, this paper try to testify my own view in the way of the following research methods, such as system analysis, comparative analysis and empirical analysis and so on, in order to make some contribution for the legislator and the judge in balance the interests between the medical institute, the patient, and all potential patients and to stimulate public discussion on the judicial interpretation of "Tort Law".This paper is divided into five parts:the first part is to debate the imputative principle on Chinese medical damage liability, and to testify that the fault liability principle is adopted by the medical damage liability in "Tort Law" within Article58, through negating the presumption of fault principle, equitable liability principle and non-fault liability principle. The second part is to analyze the understanding of "presumption" in the presumption of fault of medical damage liability from the perspective of theoretical point by the law scholar, and points that the "presumption" here is not "the presumption of fault principle", but the proving method about fault, which allows the party rebutting the presumption, which is affected by the presumption. The third part is to inspect the change and existing problem after the implementation of "Tort Law" from the perspective of legal practice, to clarity the causal relationship, the reversion of burden of proof and the identification problem, and to clarify that disputes in judicial practice is not as intense as in theoretical circle. The fourth part is to inspect that whether the provision of the presumption of fault in medical damage liability achieves its intended purpose and its existing problems from the teleological interpretation perspective, to argue that all kinds of difficult are not enough to stop attaining the legislative purpose, and to clarify that we should achieve the legislative purpose of Article58by strengthening medical records management, improving the identification system, and applying the theory of other countries about the burden of proof to ease the plaintiffs’burden in the medical dispute. The last part is to put forward some suggestions on the presumption of fault in medical damage liability on the basis of the above four parts, which are confirming the fault liability principle, unifying the identification system, clearing the judge’s cohabitancy obligation on the identification, and applying the relevant successful experience in the judicial practice in other countries appropriately.