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The Theory And Practice On The Distribution Of Burden Of Proof In Fault In The Liability Of Medical Damage In China

Posted on:2020-09-21Degree:MasterType:Thesis
Country:ChinaCandidate:J W MaoFull Text:PDF
Abstract/Summary:PDF Full Text Request
In today's society in our country,the problem of contradiction and distrust between doctors and patients is increasing year by year.Although legislators have been trying to improve the distribution of evidential burden in the field of liability for medical damage in China,there are still many problems at present.Because medical treatment activities have very high requirements for professional knowledge and medical technology,it is difficult for the affected parties to provide evidence of litigation through their own abilities.The implementation of the 2002 evidence provisions provides for special rules for the distribution of the burden of proof in the liability for medical damage.This is not only to balance the burden of proof between doctors and patients to ease the pressure of social contradictions,but also to meet the needs of the trial,in line with the progress of socialist justice and forward-looking.But at the same time,the rule has had a lot of negative effects,not only adding to the burden of proof in medical institutions,but also triggering a series of malicious lawsuits.So the tort liability law re-established the new mode of burden of proof distribution: taking the burden of proof of all the constituent elements of the patient's burdens as the leading,supplemented by the principle of presumption of fault with the conditions attached.Subsequently,in 2017,the Supreme People's Court issued theinterpretation of liability for medical damage,which provides for the different classification of liability for medical damage and the proof of its constituent elements.The continuous introduction of these laws shows that our legislation has been making unremitting efforts to this end,with a view to better safeguarding the fairness and justice of the judiciary.Therefore,under this background,this paper attempts to expand the scope of medical damage liability,medical fault,burden of proof allocation rules and so on,combing the characteristics and defects of the proof allocation rules in the fault of medical damage in China in different legislative stages,and clearly elucidate the existing problems in the form of chart data,Combining with a large number of cases of medical damage liability disputes,this paper analyzes and ponders the reasons,and discusses the idea of the construction of the burden of proof mitigation system in the liability of medical damage as a practical basis.This paper is divided into four chapters to analyze the distribution of burden of proof in the fault of medical damage liability:The first chapter is an overview of liability for medical damage.In this part,the author first defines and discusses the concepts of medical damage liability and its constituent elements,and discusses its classification according to different basis criteria.Secondly,it discusses the medical fault as one of the constituent elements,including the concept and classification of medical fault,the criterion of judgment and the principle of imputation.The second chapter is the distribution of medical burden of proof.This chapter first expounds the concept of burden of proof,then discusses three different distribution systems of burden of proof,and finally analyzes the changes of the distribution system of medical burden of proof in China.The third chapter is practice and thinking.This part is the focus of this paper,first based on the case data production of the chart,analysis of China's medical burden of proof distribution in the current practice of the existing problems.Then the paper analyzes these problems in combination with specific cases,obtains the causes of the problems,and discusses the path of the solutions according to the reasons.The IV chapter is the suggestion of perfecting the distribution system of medical burden of proof in our country.This part mainly starts from the two angles of medicine and law,not only puts forward the conception of establishing a perfect system of reducing the burden of proof,but also proposes to perfect the guarantee of patients ' right to know in the field of medical practice,establish a unified and scientific medical appraisal in the field of forensic expertise,and improve the professional accomplishment of professionals in the field of judicial trial.
Keywords/Search Tags:Liability for Medical Damages, Fault, Distribution of Evidential Burden, Legislation
PDF Full Text Request
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