Research On The Allocation Of The Burden Of Proof In Faults Of Medical Technology Damage

“The tort liability law of People's Republic of China”(hereinafter to be referred as Tort Liability Law)has been put in force since July 1,2010.It has the milestone significance in the history of the medical damage system.Although some scholars have made a similar classification of medical damage before,in the legislation,Tort Liability Law made a chapter on medical damage and devided medical damage into three types for the first time.Previously,the field of medical tort distributed the burden of proof according to the “Some Provisions of the Supreme People's Court on Evidence in Civil Procedures ”which has been put in force since April 1,2002.That is,“Medical institutions are responsible for proving There is no medical fault and there is no causal relationship between medical behavior and the consequences of injury.”After the introduction of Tort Liability Law,both the academic circles and the judicial practice think that the fifty-seventh regulation of Tort Liability Law has distributed the burden of proof to the patients in the fault of medical technology damage.“The interpretation of the application of the Supreme People's Court on the application of the law on cases of liability for medical damage”(hereinafter to be referred to “the Interpretation of Medical Damage Liability”)put in force since December 14,2017,has also made relevant provisions on the proof of the four components of different types of medical torts.Therefore,in order to improve the burden of proof system and make it better used in judicial practice,legislative circles have been making efforts.Among the three kinds of medical injury,the identification of the fault in medical technology damage is the most difficult.Therefore,through the analysis of the legislative evolution of the system of the burden of proof of medicaltort damage,this article points out that with the introduction of the relevant laws and regulations,whether the allocation of the burden of proof in the medical technology damage has changed or how it has changed,the emphasis is on the analysis of Tort Liability Law and the Interpretation of Medical Damage Liability.On the basis of it,this article puts forward suggestions for improving the distribution of the burden of proof in medical technology damage.This article is divided into three parts:The first part is about the identification of fault in medical technology damage.Firstly,clarify the concept of medical technical fault,define the scope of this paper.Secondly,discuss the standard of identification of fault in medical technology under the different circumstances of violation of statutory duty and duty for caring for medical standards.Finally,several main types and common situations of medical technology fault are introduced.The second part discusses the allocation of burden of proof in medical technology.Firstly,clarify the meaning and applicable premise of the burden of proof,explain the rules and theoretical basis of the distribution of burden of proof in the field of general tort and special tort.Secondly,sort out several legislation related to the allocation of the burden of proof in medical technology damage,and discuss its effects on medical technology damage.In addition,divides the burden of proof of the fault in the technical field of medical technology damage into three stages,and illustrates the judicial practice at the corresponding stage with classic cases;Finally,make a brief summary and analysis of the theoretical controversy existing in the academic circles,and put forword the author's opinion on this topic.The third part puts forward suggestions for improving the allocation of burden of proof in medical technology damage.Firstly,we should make clear provisions on this issue in legislation.Secondly,medical institutions undertaking the burden of proof on medical technology fault may caused some proplems,and effective measures can be taken to protect the burden of proof of medical technology fault in judicial practice.