The Study Of Distribution Of Evidential Burden Of Medical Tort Action

The civil litigation theory emphasizes the fairness and rationality of the evidence system.It tends to allocate the risk of the weaker party to the strong side,so as to achieve a balance between the parties.In the medical tort litigation,the imbalance of power between the medical institution and the patient requires the Civil Procedure Law to establish a fair burden of proof in order to give the parties an equal opportunity to realize the appeal.The establishment of medical infringement in China has undergone three stages: the general burden of proof,the inversion of the burden of proof and the inversion of the burden of proof,and attempts to find a relatively fair rule of evidence in constant correction.However,there are still some deficiencies in the current medical tort evidence burden,such as the unreasonable and inconsistent rules for the inversion of the burden of proof,and the avoidance of causal relationships that lead to loopholes in the rules and imperfections in the system of liability appraisal.Based on this,this study takes the perspective of the burden of proof in the medical tort litigation as the research perspective.Based on a comprehensive analysis of the problems in the burden of proof in China's medical tort litigation,combined with the advanced experience of the Anglo-American legal system,it proposes specific measures for improvement.Can be divided into three parts:The first part is the theoretical analysis part,which mainly analyzes the basic theories of medical infringement and the burden of proof.Specifically,it includes China's relevant provisions on medical infringement and the burden of proof,as well as the advanced experience in the Anglo-American legal system concerning the burden of proof of medical infringement,which lays a theoretical foundation for the analysis of the following text.The second part is the problem analysis part,which comprehensively analyzes the problems existing in the formulation of the burden of proof in China's medical tort litigation,and lays an empirical foundation for the analysis of targeted perfect strategies.The third part is the part of strategic analysis.It mainly proposes targeted and comprehensive strategies for the problems existing in the empirical part,including expanding the scope of fault-presumptive application;improving the burden of proof of “causality elements” and perfecting the scientific medical tort liability appraisal system,etc..