The Distribution Of Burden Of Proof Of The Elemento Cotitutivo In Medical Dispute

This dissertation aims to red ivide the litig ation of medical dispute an d plumb a new allocation of burden of proof for the el emento cotitutivo of different types of cases.Besides the introduction, the body is com posed of four chapters with a total of more than 60000 words.The first chapter is the summary of the Medical Dispute Litigation. The purpose of this chapter is m ainly to define the concept of Medical Dispute Li tigation so that we can deeply analyze its characteristics,breaking through the concept which the litigation of medical dispute was divided into Me dical Malpractice Disputes and Medical Treatment Fault Dis pute previously in order to r eestablish the types of the litigation of medical dispute from the aspects of contract and tort. Medical Service Contract Dispute Litigation includes the litigation of general medical service contract disputes, special medical service contract disputes, and clinical trials disputes whileMedical Damage Liability Disputes Litigation includes the litigation of medical tort disputes, medical ethics and medical product liability disputes.The second chapter is the expression of the elem ento cotitutivo in Medical Dispute Litigation. According to a targeted analysis of different types of the elemento cotitutivo in Medical Dispute Litigation, this chapter introduces its concept, characteristics and litigation function. The facts of right of claim of Medical Service Contract Dispute Litigation dem and the au thenticity of the express ions from both parties while regis tering is regard ed as the signal of concluded m edical service contract. The defense of pres criptions, including idiosyncrasy and complications of patients, is able to prevent the occurring of the right of claim.The facts of right of claim of Medical Dam age Liability Dispute Litiga tion includes fault, damage and caus al relationship while the fault of prescriptions is performed as action of the obeying of dut y of care from the pr oviders of medical service; the damage in patients includes both the d amage in rea l rights and in expectation interests; and causal r elationship includes the relationship of liability causality and of liability scope which the equivalent th eory is usually seen as the standard of the establishment for casual relationship.The third chapter is the explanation of the Distribution of the Burden of Proof of the elemento cotitutivo in Medical Disput e Litigation. W ith the Combination of substantive law on doctrine of liability fixati on of the burden of proof in the m edical malpractice tort and th e classification of legal requirement, it is the r esponsibility of patients that the burden of proof of the fa ult of prescriptions and the dam age of patients in Medical Damage Liability Dispute Litigation; in order to ensure the peer and balance of the attack and defense of both parties, the shift and alleviation of burden of production of proof is be neficial to reduce the burden from the party of patients. The judge can distinguish and di stribute the burden of proof from both parties according to particular case and use free-belief princip le to th ink comprehensively for some special situation such as spoliation of evidence.The fourth chapter is the perfection of the Distribution of the Burden of Proof of the elemento cotitutivo in Medical Dispute Litigation. The reasonable distribution of the burden of proof in Medi cal Dispute Litigation needs to consider many factors from the civil action and medicine in order to balance the rights and interests of both parties.The specific action is to use the Theory of Classification of Legal Requirem ent as basic principles and to m ake patients provide evidences for that unique composition of elements in Medical Service Contract Dispute Li tigation belong to right norms; however, the general constitu tive requirements belong to right to interfere with specification so that it is the duty of prescriptions to provide evidences to prove unfounded. Because Medical Service Contract Dispute Litigation implement principle of nonfault, it is no need to prove the fault of prescriptions if patients ask them to shoulder the responsibility for the reason of case in Medical Service Contract Dispute Litigation. In causal relationship, patients should u ndertake lost lawsuit risk when the authenticity is unknown. Nevertheless, to sufficiently secure the interests of patients, we should use m any methods such as Anscheinsbeweis, converting the burden of proof when major medical negligence happened, and clearing the obligation of providing the documents of prescriptions to help patients who are in weak position so that judges can easily achieve the m oral conviction of Wahrsc heinlichkeit for the establishment of tort fact.