On The Distribution Of Burden Of Proof For Medical Infringement

The allocation of the burden of proof is the main purpose to liability for path so as to more rational allocation of the damage cost,the allocation of the burden of proof is reflected in the fair principle of modern law.However,due to medical tort as a special form of tort,the allocation of the burden of proof has become an obvious difficulty.The "tort liability law" has provided the basis for the treatment of medical tort,and points out the specific rules of the allocation of the burden of proof to establish a different allocation of the burden of proof system.Analysis about the distribution of the burden of proof of medical tort field,medical tort of allocation of burden of proof in foreign,to identify the current our country in medical tort the distribution of burden of proof of the highlights and shortcomings,namely the sorting out of the a unique research perspective,but also provides a very practical significance of the research topic.As the research basis of distribution of evidential burden in medical infringement,thinking contains two aspects:on the one hand,through the theoretical construct,put medical tort in the basic theory of modern jurisprudence basis;Second,through the comparative study to explore the medical tort problems of distribution of evidential burden.Based on this,the research context to highlight of the article,the full text of this paper is divided into four parts:the first part of the classification of medical infringement in our country and the general medical tort the allocation of the burden of proof responsibility development situation were expounded.The second part of Anglo-American law system and continental law system about the inspection,the comparison between the allocations of the burden of proof to summarize the two big legal system about the advanced characteristics of the rules of disrtribution of evidential burden,can put forward for reference.Third part found reality in legislation in our country;the paper expounds the evidence rules of onus probed inversion of positive and negative two-way conflict and the tort liability law rules of distribution of evidential burden progress and deficiency of two-way considerations.The fourth part in the third part puts forward the defects of legislation and judicial practice in China,from the entity level,the judicial practice level,rules of procedure level aspects Suggestions respectively.Through the research can be found that the act of tort liability in our country determines the medical damage liability imputation principle system has been clear about the general medical liability for damage shall implement the principle of fault liability,onus probed inversion of the evidence rules the sharp correction,completely changed the civil evidence rules of medical litigation proof responsibility to the provisions of the "double inverted".However,lack of the basic system of the burden of proof to ease the applicable of the shortcomings of the three aspects,such as,which is unfavorable for the protection of the interests of the weak,caused a new round of unfair phenomena.This paper argues that China's medical tort responsibility matrix distribution optimization from the entity rules level application rules,social practice level,level,form a reasonable medical tort system of distribution of evidential burden.