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Study On The Application Of The Principle Of Fact Self-Evidence In Medical Tort In China

Posted on:2017-07-05Degree:MasterType:Thesis
Country:ChinaCandidate:J YuFull Text:PDF
GTID:2356330512475262Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In the field of medical infringement,due to the medical behavior of risk and professional,the allocation of burden of proof on the results of medical lawsuit to the key role,The "Law of Liability for Infringement "of our country establishes the fault of medical tort belong to the responsibility principle,and also provide three kinds of special situation,three kinds of special situation can direct presume that the medical behavior is negligent.Reflected in the rules of the burden of proof:in general,"The burden of proof is upon the party who claims".Although this provision can improve some drawbacks of reversion of burden of proof,but it also caused the problem of inequality in the arms of the plaintiff and the defendant,which led to the plaintiff in a disadvantageous position,the move was questioned by experts.Res ipsa loquitur of Anglo American law system processing is used in medical tort principle.It can not only relieve the relationship between both sides of the medical,also for both doctors and patients are beneficial to eliminate injustice between doctors and patients,and can not increase the burden of medical institutions,it is worth learning from.In this paper,based on res ipsa loquitur in the application of medical tort in China,in addition to the introduction and conclusion,the full text is divided into five parts.The first part introduces in detail res ipsa loquitur,expounds the meaning and origin ofres ipsa loquitur,and analyzes the applicable factors of res ipsa loquitur,and evaluates the association of res ipsa loquitur,legal effect and causality of res ipsa loquitur,and finally summed up the medical tort cases that res ipsa loquitur is mainly applicable to the case.The second part introduces the present situation of the allocation of burden of proof in medical tort in our country.First introduce the basic theory of burden of proof,burden of proof and the allocation of the burden of proof theory is discussed in detail,and discusses the relationship between liability principle and burden of proof;secondly,the paper introduces the legal basis for the allocation of burden of proof in the medical tort cases,analyzes the academic circles on "The Law of Liability for Infringement" Article 54 and 58 of dissent,and China should be how to allocate the burden of proof of the dispute;finally,combing the our country the allocation of the burden of proof exists.The third part introduces China problems and content of res ipsa loquitur,elaborates necessity and feasibility of the application of the principle of res ipsa loquitur.It has the advantage of balance in medical tort lawsuit parties "weapon",and can solve the problem of medical tort cases in the substantive law responsibility principle and unified allocation of burden of proof rules.At the same time,because of improvement of the current Chinese judges quality,itís possible to use the res ipsa loquitur.In the fourth part introduces Chinaís medical tort applicable suggestion about res ipsa loquitur,due to overcome the real life silent conspiracy,medical information asymmetry and damage the interests of patients,the countries of Anglo American law system implemented res ipsa loquitur in the judicial practice,it can promot balance of weapon,in the judicial practice it make good effect.In this regard,China also can use it in medical tort,itís useful to really implement the allocation of the burden of proof,promote the diversification of medical tort litigation fairness and justice,as well as create good conditions for the introduction of res ipsa loquiturto,"The Law of Liability for Infringement "needs further improvement,and by making use of the establishment of alternative medical disputes settlement mechanism,res ipsa loquitur can reduce the court pressure.
Keywords/Search Tags:medical tort, allocation of burden of proof, res ipsa loquitur, reversion of burden of proof
PDF Full Text Request
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