Research On Distribution Of Burden Of Proof In Medical Tort Litigation

The distribution of burden of proof is one of the important problems in the medical tort litigation.As the information asymmetry between medical institutions and patients,medical tort litigation has the characteristics of professionalism,evidence bias and complexity.Although the system of medical tort litigation gradually becomes perfect day by day in our country,the distribution of burden of proof in litigation still faces the following dilemmas: legislation swing,at the same time,including proof of responsibility,proof of responsibility inversion,court discretionary distribution.There is also a dilemma in reality of distribution.For this,the civil law countries generally advocate that the parties in the proceedings should bear the burden of proof according to required constitutive elements of their applicable legal norms.In the whole process of litigation,through the study the interests among both the parties and the court,the pursuit of litigation justice,the achievement of litigation value and other theoretical considerations,combined with legislative basis,the governance of litigation disorder,litigation economic and other practical basis,the burden of proof is more appropriate by the patient who is the plaintiff in medical tort litigation On the basis of this,through the analysis of the theory of primary face proof which is widely adopted in German medical tort litigation,its application value is discussed from the perspectives of court,litigant and litigation,etc.It is argued that China should learn from and use primary face proof to solve the theoretical and practical obstacles in judicial practice and to promote litigation between medical institutions and patients equal confrontation in litigation.Then achieve the effect of solving the disputes between them.