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Research On China’s Doctrine Of Liability Fixation For Medical Damage Liability

Posted on:2016-08-30Degree:MasterType:Thesis
Country:ChinaCandidate:Y YuFull Text:PDF
GTID:2296330470968874Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Before “The Tort Law” was introduced, our country’s medical liability for damage was adopted three double-track systems of cause of action, application of law and liability identification, that is, the regulations of “Notice of the Supreme People’s Court on Trialing Civil Cases on Medical Disputes by Referring to the Regulation on Handling Medical Malpractices” and “Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury” were applied separately by the judge when distinguishing between cases of medical accident liability and medical fault liability among the medical dispute cases in practice. Furthermore, the medical association has a monopoly on the identification of medical accident liability and expert testimony exists universally in the identification of medical fault liability. The double-track system of medical damage liability covers a relative large range, but it’s not a system of balancing the relationship between doctors and patients’ rights. Since the adoption of “The Tort Law”, our country has established a multiple system of doctrine of liability fixation for medical damage liability, which is unified planning and given overall consideration. It deals with the balanced relationship fairly and properly between the interests of patients and the ones of medical institutions, promotes the integrated development of the medical cause, and protects of the health benefits of social groups.The topic of this paper is the doctrine of liability fixation for medical damage liability. Medicine is an empirical, exploratory as well as risky subject, and these particularities make its determination of tort liability differ from the general one. To solve medical disputes effectively has always been the focus of attention of the world. The core problem of constructing the entire content and system of medical damage liability is actually to ensure reasonable principles and establish a logical strictly system of doctrine of liability fixation. The doctrine of liability fixation for medical damage liability determines the classification of medical damage as well as different constitutive elements of responsibilities, exemptions, burden of proof, the basis of mitigation of liability and the principles and methods of compensation etc. The doctrine of liability fixation is the basis of solving medical dispute cases’ responsibility assumption through legal channels, and the soul and core rule of medical damage liability. Although “The Tort Law” regulates medical damage liability in Chapter Seven with the form of a special chapter and constructs a multiple system of doctrine of liability fixation, the theoretical circle has arguments on the specific legal application for the various types of doctrines of liability fixation. In judicial practice, there exists some misreading of the interpretation of legal provision by the judge, which leads to the fact that medical tort cases can not be resolved effectively. Therefore, this paper chooses to study the doctrine of liability fixation so as to better determine the liability assumption of medical damage.Therefore, this paper defines doctrine of liability fixation, makes statements and analysis of the basic principles of doctrine of liability fixation for medical damage liability from the perspective of the tort law,traditional theory of civil law and medical damage liability, and analyzes and summarizes in detail the scope and the existing problems of doctrine of liability fixation for medical damage liability on the basis of comparing related regulations in legislation of foreign major developed countries on this issue, combined with our country’s types of doctrine of liability fixation of medical damage liability by referring to a large amount of material and relevant literature. The author makes suggestions on consummating the doctrine of liability fixation for medical damage liability on the basis of “The Tort Law” available now. It can make our country’s doctrine of liability fixation for medical damage liability can be effectively applied in the judicial practice by perfecting its system, which better balances the doctor-patient relationship of interests, eases the contradiction of both sides, and resolves medical disputes.
Keywords/Search Tags:medical damage, tort liability, presumption of fault liability, strict liability
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