Research Into The Distribution Of The Burden Of Proof In Medical Tort Litigation In China

The medical tort litigation has become a social focus, which not only seriously affectedthe judicial credibility, but also closely about social harmony and stability. Distribute theburden of proof in medical tort litigation reasonably so as to balance interests of proofbetween the doctor and patient is an important way to solve the current medical tort litigationsituation.So far, the distribution of burden of proof in medical tort litigation has experiencedthree stages,“Who advocates, who the burden of proof” stage,“Reversion of Burden ofProof” stage, and “the distribution of burden of proof in the faculty Liability Principle ofdeferent’s type”stage. In the whole development process, mainly is how to distribute theburden of proof between the doctor and patient, but it still swings between the two extremes,haven’t seek the best balance point, after the tort liability law be put into effect, the problem isstill outstanding, which is worth to explore. Look from foreign legislation, such as Japan’s“Probably presumption”,“Primary-face Proof” in Germany and “the fact shows negligence”in the United States, which all are to take legislative measures to decrease the paint’s burdenof proof, has great enlightening significance. In this paper, we will discuss the distribution ofburden of proof in the medical tort lawsuit of our country deeply along the line.This article is divided into five chapter elaborates on the following: The first chaptermainly introduces the origin, characteristics of medical tort litigation and the current way outof the predicament, and defines the connotation of the burden of proof, briefly expounds thegeneral theory of distribution of burden of proof; The second chapter mainly divide Thedistribution the burden of proof in medical tort litigation into three stages, combined with the1991civil procedure law，the2002evidence rules and the2010tort liability act，what’s more,introduce and comment every stage; The third chapter mainly analysis the defect of thedistribution of burden of proof in the faculty Liability Principle of deferent’s type, accordingto the2010tort liability act; The fourth chapter mainly Introduction and comparative analysisthe foreign advanced legislation, Includes Japan’s “Probably presumption”,“Primary-face Proof” in Germany and “the fact shows negligence” in the United States; The fifth chaptersmainly discuss how to perfect distribution the burden of proof in medical tort litigation inchina In combination with judicial practice...