The Localization Construction Of The Theory Of Loss Of Survival Opportunity

Loss of opportunity theory The victim has lost a certain opportunity benefit,and the loss of opportunity benefit is caused by the behavior of the infringer.This opportunity benefit manifests itself as a possibility of gaining benefits or avoiding losses,so the infringer bears this responsibility Liability for damages.This doctrine is embodied in medical tort disputes,that is,the loss of survival opportunities.The loss of survival chance refers to the patient's improper diagnosis and treatment behavior resulting in the total loss or partial loss of survival chance,so the medical party should bear the liability for damage compensation to the patient.In the field of damage compensation,there has been theoretical controversy regarding the positioning of opportunity benefits and compensation for lost opportunities.Although the Anglo-American legal system countries and France and other countries have adopted the theory of loss of opportunity in their judicial practice,the acceptance of this theory varies from country to country.China's current laws have not adopted this theory,but cases of damage compensation for loss of survival opportunities in the medical field are not uncommon.The core issues involved in such cases are causation and damage.Traditional tort law believes that the establishment of damage compensation must be based on the determination of damage,and the damage caused in the case of loss of survival opportunity is not a deterministic result,but an expected possibility.Of course,for such cases There is also controversy in the academic circles regarding the determination of damage.In addition,the traditional tort law theory follows the "all-or-nothing" causality identification standard,and it seems powerless in solving cases of loss of survival opportunities.Faced with the dilemma brought by the loss of survival opportunities,countries are looking for a way out between maintaining legal stability and seeking fairness and justice,adjusting and breaking through traditional tort law theories,or repairing the principle of causality or redefining the meaning of damage.The reason why the chance of survival is difficult to identify is mainly due to the following problems:1.The determination of the object protected by law;2.The problem of causality;3.The problem of determination of damage.The author advocates the inclusion of survival opportunities in the protection of the right to life and the right to health;breaks through the traditional all-or-nothing certification rule on the issue of causality determination and adopts a loose causality proof standard;in determining the damage,according to the causality relationship The proportion determines the amount of damages.This article introduces the theory of loss of survival opportunity and the practice of this theory in various countries,combined with the above main issues to explore,try to solve the related problems of damage compensation for loss of survival opportunity,and explore theoretical suggestions suitable for China's practical needs.