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Research On The Burden Of Proof In Medical Tort

Posted on:2018-04-20Degree:MasterType:Thesis
Country:ChinaCandidate:Q ShenFull Text:PDF
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The distribution of civil burden of proof is called "the pillar of civil action".In the course of litigation,different distribution methods for the burden of proof can produce entirely different judgment results.In the medical tort cases gradually intensified today,how for the trial of the case to achieve fairness and justice has become a social problem of concern,and one for how to allocate the burden of proof between doctors and patients has become the focus of good.In view of this,the relevant legislation on the burden of proof is also constantly improved,for example,from "who advocates who proof,to "burden of proof inversion" to "general burden of proof","additional fault" presumption".Of course,there are some advanced aspects,but it also reflects the uncertainty of the distribution of medical tort evidence,and the judicial practice is seriously affected.Looking at the distribution of the burden of medical tort in foreign countries,we can find that some countries tend to tend to mitigate them in the law.The patient's burden of proof,so as to better protect the interests of patients.Most European countries apply the "fault liability" In the "Anglo American Law",the State applies the distribution of the principle of self evidence,and Japan applies the principle of general presumption,and Germany applies the rules of "see evidence".China's tort liability law will be proof of the existence of fault to the transfer of basic medical patients,whether this will aggravate the patient burden of proof?Will it affect the plaintiffs damage and get compensation?This,combined with the present situation of medical service in our country,draw lessons from foreign advanced experience,can improve the burden of proof of medical tort distribution in our country from many aspects,perfect the judicial interpretation,the introduction of foreign apparent proof system;favorable reference foreign experience,improve the distribution of the burden of proof of medical tort in our country,in order to better protect the interests of patients,promote the development of medical industry healthy and stable.This article begins with the promulgation of the general principles of the civil law of the People's Republic of China in 1986,and has been closed to all legal categories so far In the medical tort liability disputes,the relevant legal provisions of the distribution of burden of proof are studied,and systematic analysis of the amendment of the legal provisions The significance and defects,on the basis of the experience of foreign medical tort liability disputes about the allocation of the burden of proof on the principles on the basis of cases and data,combing China's legal system of medical tort liability,through the relevant provisions of foreign law,foreign advanced legal system,and put forward the corresponding suggestions.The first chapter,through the case of medical tort responsibility to prove the topic,pointed out that because of China's legislation for the allocation of the burden of proof of medical tort wavering caused in the judicial practice of the allocation of the burden of proof according to different causes "some sentence" results.The second chapter,through the legal provisions of medical tort liability,the evolution of legislation to sort out,and expounds its characteristics,in order to draw a horizontal point of view.The third chapter,on the basis of the previous chapter,focuses on the existing problems of our existing system.The fourth chapter introduces the contents of Germany,Japan and the United States,the burden of proof of medical tort law on the system,and compares them,so as to prepare for the next chapter of medical tort liability system in China are proposed.The fifth chapter puts forward some suggestions for the problems raised in the last four chapters.
Keywords/Search Tags:medical tort, burden of proof distribution, burden of proof system
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