On Prima Facie Beweis In The Causality Of Medical Tort Litigation

As a typical modern dispute,the problem of proving the fact of causality in medical tort dispute is universal in the world.The inequality of arms caused by the bias of evidence and the professionalism of medical knowledge increase the difficulty of adjudication of medical tort litigation.As civil law countries,Germany and Japan took the principle of free evaluation of evidence as the principle in their judicial practice for a long time,and formed the theory of Prima facie Beweis.This theory provides a useful reference for our country to solve the problem of proof of causation in medical tort litigation.It also has reference value for the standardization of evaluation of proof in civil litigation in our country.In addition to the introduction and conclusion,the paper is divided into four parts:In the first part,the question is raised:In order to solve the difficult problem of proving causation in medical tort dispute,our country first carried on the proof burden inversion stipulation in the " Some Provisions of the Supreme People's Court on Evidence in Civil Procedures ".Then determined the fault liability principle in the " Tort Law of the People's Republic of China".And the inversion of the burden of proof has been corrected.In 2017,"The interpretation of the Supreme people's Court on some issues of the applicable Law in the trial of Medical damage liability dispute cases" was issued,and the procedure for the identification of medical damage responsibility was stipulated.All of them solve the difficult problem of proving causation in medical tort disputes at that time.However,it can not be ignored that there are essential differences between causation and scientific causation in medical tort litigation,and some cases can not start the identification procedure or obtain the identification opinion objectively.We must face up to the limited role that medical expert opinion can play,and attach importance to the role of judges' free evaluation of evidence in medical tort litigation.The second part,the analysis of the problem: In the long-term judicial practice of Germany and Japan,the theory of Prima facie Beweis based on the principle of free evaluation of evidence has achieved good results in the determination of causality,which is worthy of our reference.From the comparative point of view,through the analysis of such classic cases as "the case of syphilis by blood transfusion" in Germany,"the case left behind by cotton balls" in Japan,"the case of lumbar puncture" and "the case of delayed diagnosis of gastric cancer" in Japan;Compared with similar cases of transfusion infected virus and delayed diagnosis in judicial practice of our country,we can see that there is no unity in the judgment of similar cases in our country.In view of the fact that Germany and Japan have realized the effect of uniform application of law in this kind of cases through the application of Prima facie Beweis,this paper puts forward the idea that our country can introduce Prima facie Beweis in relevant cases.The third part,the analysis of the theory:Prima facie Beweis is the application of the rule of living experience within the framework of free proof evaluation,and the presumption of fault or causation is established in the case where a typical event takes place.Through contrasting and analyzing the confusing concepts such as burden of proof,standard of proof and presumption of fact,it is clear that apparent proof neither changes the burden of objective proof,nor lowers the standard of proof,nor is it equal to the presumption of fact.In essence,it belongs to the category of proof evaluation.The fourth part,the solution of the problem:This paper discusses the construction of Prima facie Beweis in the proof of causation in medical tort litigation in China,and from the point of view of the necessity of construction,It can overcome the dependence of identification,avoid the over-correction of burden of proof distribution,reduce the difficulties of proof,and achieve the applicable effect of litigation economy.From the perspective of the possibility of construction,the recognition of the principle of free evaluation of evidence and the relevant provisions of the rule of experience in civil litigation in our country,the construction of Prima facie Beweis has the corresponding theoretical and institutional basis.Of course,the application of Prima facie Beweis needs to further type the rule of experience,and through the guidance of the Supreme people's Court to build the case system of Prima facie Beweis.Finally,because the application of Prima facie Beweis has the legal effect of reducing the burden of proof of the patient,the medical institution can provide the counterevidence to the application of the proof by shaking the temporary evidence formed by the judge to refute the application of the certificate.If the judge can not form a fully convinced evidence,then Prima facie Beweis should not be applied,so the application of Prima facie Beweis also needs to match the open system of the judge.