Research On The Primary-face-proof In Medical Tort Litigation In China

According to the provisions of China’s Civil Code,the principle of liability for fault is generally applied in medical litigation,which can effectively reduce defensive medical behavior,but it will also lead to the dilemma of the patient’s proof,patients will often bear the risk of adverse proof because of the failure of proof.Even if the principle of fault liability,which is usually applied in medical tort litigation according to the provisions of the Civil Code of People’s Republic of China,can effectively reduce defensive medical behavior,it will also cause the patient’s predicament in the burden of proof,which leads to the patient often undertaking the risk of negative proof on account of failure on burden of proof.In order to balance the interests of both doctors and patients,in addition to the reasonable distribution of the burden of proof between both sides,it is necessary to ensure and improve the relevant system.Balancing the interests of both doctors and patients requires not only the reasonable distribution of the burden of proof between both sides,but also the protection and perfection of the relevant institution.It can reduce the burden of proof for patients to apply the proof in the medical litigation in China.To overcome the subjectivity of the application of the presumption of fact;extended proof method;Strengthen the judge’s inner confidence and so on.The application of the primary-face-proof in medical tort litigation in China can mitigate the burden of proof on patients,overcome the subjective application of the presumption of fact,expand the mode of proof,and enhance the judge’s inner confidence.The first part of this paper discusses the basic theory of ostensible proof,and expounds the definition of ostensible proof and the significance of essence research to the subsequent system construction.In the second part of this paper,the typical cases selected from the Chinese adjudication documents on the Internet are typed and classified into five different types.On this basis,four kinds of proof dilemmas existing in the medical tort litigation in China and their causes are put forward.The third part of this paper systematically expounds the legislative evolution of the distribution rules of burden of proof in medical tort litigation and studies the relationship between apparent proof and relevant systems,discusses the necessity of apparent proof to solve the dilemma of proof in medical tort litigation in China and the enlightenment of the necessity of apparent proof to the subsequent system design.On this basis,it analyzes the institutional basis for the introduction of apparent proof into medical tort litigation in China by the current deepening of judicial reform.In this paper,the fourth part for the medical tort lawsuit of the four difficulties in our country,put forward the table to see proof in medical tort litigation in our country is introduced into four Suggestions,including in the case of the instructional set table see proof of the typical things like,is an open table in the written judgment of the results and prove that the formation process,promote the ostensible systematic proof rule of thumb,applies a system of law enforcement agencies.