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Discuss The Burden Of Proof For Medical Disputes In China

Posted on:2022-01-24Degree:MasterType:Thesis
Country:ChinaCandidate:X Y YueFull Text:PDF
GTID:2506306512466024Subject:Master of law
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Medical With the improvement of modern economic living standards,the people's concept of the rule of law has also been continuously enhanced,and there have been more and more medical disputes.Medical damage liability disputes are special infringement disputes based on their professional and complex characteristics.The burden of proof in medical disputes in my country has gone through the development process of the general burden of proof of "who advocates,who will provide evidence" —inverting the burden of proof of fault and causality—differentiated distribution of burden of proof.From this development process,we can see that my country The law stipulates that continuous efforts should be made to balance the contradictions between the doctors and patients and to maintain the equality of arms between the two sides.The foreign regulations on reducing the burden of proof for patients mainly include the principle of “extrinsic proof” and the theory of burden of proof conversion in Germany,the principle of “rough presumption” in Japan,and the “principle of negligence in facts themselves” in the United States.They analyze the impact of foreign legislation on medical disputes in my country The legislation and judicial practice of burden of proof have important reference significance.Through the analysis of relevant medical dispute cases,it points out the problems of the burden of proof in my country's medical disputes.In judicial practice,due to different understandings of the application of the law,there are two different views on the nature of the presumption of fault stipulated in Article 1222 of the Civil Code: the presumption that allows rebuttal and the presumption that is irrefutable,leading to practical results.Different;Summarizing the compensation situation of medical disputes,the patients still get a high proportion of compensation,and the reason for the patients losing the lawsuit is mostly the difficulty in proving fault and causality;and there are problems in the medical damage identification system as an important reference for medical disputes.In judicial practice,the problem of "substituting appraisal for trial" is prominentBased on the above issues,combined with my country's specific circumstances,regarding the nature of the presumption of fault in medical disputes,the judicial interpretation stipulates that the standard for determining fault is “diagnosis and treatment obligations corresponding to the medical level at the time”,Article 1222 Paragraph 1 of the Civil Code The prescribed presumption of fault is a presumption that allows rebuttal.The second and third provisions prevent the system from distinguishing intention and negligence through proof.In addition,on the basis of clarifying that the patient bears the burden of proof in the sense of the result,the introduction of apparent proof and the relaxation of the burden of proof are introduced to reduce the patient's burden of proof regarding fault and causality.Regarding the "dualization" of medical damage appraisal and the phenomenon of appraisal instead of review,it is necessary to promote the integration of the dual-track medical appraisal system,establish a medical dispute expert liability database,and introduce the principle of debate on the basis of the principles of science,fairness,and peer review to ensure.The neutrality and objectivity of the appraisal opinion.
Keywords/Search Tags:medical disputes, burden of proof, apparent proof, medical damage appraisal
PDF Full Text Request
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