The Research On The Distribution Of The Burden Of Proof In China’s Medical Damage Compensation Litigation

The medical damage compensation litigation is different from the general civilcompensation lawsuit.The former is more professional, the litigants’ ability forproving is different and the doctor-patient relationship is always stressful. Thereforethe principle of the distribution of the burden of proof of this kind of lawsuit is alsodifferent from the general tort lawsuit of that. Due to the changes in policy and legalvalues and other reasons, our medical liability lawsuits proof allocation rules oflegislative changes have gone through three stages: the first stage of “He who assertsmust prove”, the next stage of “double inverted” about burden of proof in theRegulations on Civil Action Evidence and the third stage of “tying” about medicaldamage liability in the Tort Liability Law. According to the current regulations ofdistribution of the burden on proof in the lawsuit of medical damage liability,whichis bases on the legal value of protecting the healthy development of medical science,that the patient should take the responsibility of distribution of the burden of proof inmedical damage.The establishment of the rule help to correct the series of badphenomenon in society previously caused by the rules of upon burden of proof andguide the behavior of medical proof damages litigants. However, there are dilemmasindeed in practice to carry out the current the rules of medical judicial action fordamages in the burden of proof. The reasons are following. The omissions in theregulation itself; the real meaning of the set of rules are not fully understood injudicial practice; the lack of the supporting systems of protecting the rights of patientswho undertake the major responsibility after applying the current the rules ofmedical judicial action for damages in the burden of proof.In order to study the assign responsibility in medical proof of damages litigationand learn the difficulties in practice about the medical damages litigation burden ofproof problems in the judicial rules, the thesis select several cases and study themcarefully then it find some difficulties in legal practice about the medical damagecompensation litigation of burden of proof allocation rules in our country: Firstly,thedisunity of the standard of the burden of proof and distribution; Secondly, the ownership is opaque about the causality of general fault cases or the causalitypresumption of fault case the burden of proof. The reasons for the practice difficultiesare following: The problem of the ambiguity of the current rule itself of the medicaldamage compensation litigation of burden of proof allocation; the social meaning ofthe change is not fully understood by some legal works who only pay attention tokeep the fairness and justice in some case in practice; the supporting system is notsufficient for the protection of the patients who take the main responsibility after theapplying of the current rules of the burden of proof allocation.For the above reasons,the thesis will discuss the three points to improve the judicial present situation: Firstly,to implement the relevant rules of the medical injury compensation law in the TortLiability Law and unify the regulations of medical damage compensation lawsuitproof responsibility distribution;Secondly, to adhere to the rules of this burden ofproof on the basis of clearly defined by the patient to bear the burden of proof ofcausality, when the three situations stipulated in the58tharticle in the Tort LiabilityLaw appear, in consideration of the capacity and effectiveness of the proceedings onthe basis of the patient’s proof, the burden of proof on causation will make differentdistribution. Finally, the medical liability insurance system can be established toimprove the matching system of medical liability lawsuits proof allocation rules toprotect the legitimate rights and interests of the patient, so that the burden of proofallocation rules of medical lawsuits can be effectively apply.