Research On The Allocation Of The Burden Of Proof Of Medical Malpractice Compensation Lawsuit

The distribution of the burden of proof in the case of medical malpractice is related to the burden of both doctors and patients on the risk of losing.China to solve the problem of both doctors and patients difficult to prove,in the legislation to do a series of attempts and reform,on the medical malpractice litigation cases,the burden of proof has gone through three stages: “who advocates,who provoke”stage,the burden of proof inversion stage,the distribution of burden of proof in the type of principle of imputation stage.From the whole development process,it mainly to balance the burden of proof between doctors and patients,but always at two extremes.To the present,Tort liability law can't solve it,the problem is still outstanding.In contrast abroad,medical treatment cases on malpractice action is also a more complex problem,but the development of foreign legislation and practice,such as the “proof of expression” theory of German law,the “fact self-certification” rules of Anglo-American law and the “presumption” theory of Japanese law,which have played an excellent social effect in alleviating the burden of proof of the burden of patients and praised by our scholars,is an effective experience for solving the current burden of proof.On the basis of analyzing the basic theory and legal provisions of the distribution of the burden of proof in our country,reflect the realities of existence.Combined with the analysis of “proof of expression” theory,“fact self-certification” principle,“presumption”theory to solve the medical malpractice litigation cases the burden of proof of the distribution of the benefits,which is mainly reflected in two aspects,the burden of evidence to reduce the burden of patients and the regulation of the judge discretion.On this basis,the author puts forward the suggestion of introducing “the alleviation rules of burden of proof”,analyzes the reason and the relevant procedure of the introduction of “the alleviation rules of burden of proof”.In view of the positive role of the judge in the burden of proof,take the reasonable exercise of the discretion of the judge,as the power of introduction smoothly about “Thealleviation rules of burden of proof”.So that in the case of medical malpractice litigation cases,the patient,the medical side and the judge which according to the legal procedures,interacting actively and promoting the proceedings,to ensure fair and efficient trial.