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Study On Judicial Application Of Causal Relationship In Medical Damage Liability In China

Posted on:2020-12-04Degree:MasterType:Thesis
Country:ChinaCandidate:G H XuFull Text:PDF
GTID:2416330572976607Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Causality is one of the recognized problems in the field of tort law.In addition to the complexity and professionalism of medical damage,it is more difficult to study the causality of medical damage liability.There must be a causal relationship between the illegally diagnosed and treated behavior and the consequences of the patient's injury.The particularity and professionalism of medical behavior make many problems in the identification of causal relationship.This article mainly expresses its own views on the causality of medical damage liability.The author finds that the disputes about the application of causality of medical damage liability in judicial practice in China mainly lie in the following points: what is the causality of medical damage liability? The criteria for determining causality of medical damage liability are not uniform,and what kind of theory should we adopt? Is it the continuation of conditionality and equivalence theory in continental law system or the reference of factual causality in Anglo-American law system? Consideration of legal causation or combination of them;what doctrine should be adopted to prove causation,namely,the doctrine of proof,the doctrine of complete presumption or the doctrine of conditional presumption;the impact of medical damage appraisal system on causation,there is a dualistic problem in our medical damage appraisal system,and judges rely too much on the results of appraisal,so the rule of causality is easy to be verified.There are different theories about the influence of the conclusion,the distribution of burden of proof on causation,and the application of the theory of loss of opportunity in causation.The author believes that in order to change the inconsistency of the criteria for determining the causality of medical damage liability,the first thing is to unify the criteria for determining the causality of medical damage liability.That is to say,the theory of causality of medical damage liability should adopt the theory of considerable causality.Then,the proof of causation should adopt conditional presumption.Finally,the Supreme People's Court's Interpretation of Several Questions Concerning the Application of Law in Hearing Medical Damage Liability Disputes(hereinafter referred to as "Judicial Interpretation")implemented on December 14,2017 reflects the mitigation system of burden of proof to a certain extent,which plays a significant role in resolving the impact of the distribution of burden of proof on causality,and at the same time,we should correctly use Assist witnesses with experts to confirm causation.Finally,in order to avoid the accused who is at fault escaping punishment on the grounds that the damage result is inevitable,we should clarify the theory of loss of opportunity and interests,and improve its identification process,so as to protect the plaintiff to obtain more favorable opportunities.In summary,the author studies the differences and similarities between the two legal systems in detail,finds the theory suitable for our country,and improves the relevant system of judicial application of causality of medical damage liability.Under the background of increasing medical disputes and unprecedented tension between doctors and patients,it is of great significance.
Keywords/Search Tags:Responsibility for medical damage, causality, equivalence theory, opportunity loss theory, judicial application
PDF Full Text Request
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