我国医疗侵权举证责任分配之反思与重构_宋平.pdfVIP

28 6 Vol. 2 8, N o. 6 2 0 1 0 6 H e be i L aw Sc ience Jun. , 2 0 1 0 宋 平 (, 643000) : , , , , , , , : ; ; ; : DF713 : A : 1002-3933( 2010) 06-0141-06 Reflection and Reconstruction of A llocating the Burden of Proof ofM edical Tort SONG Ping ( Sichuan niversity of Science Engineering, Z igong 643000 China) Ab stract: In the request of substantive justice and procedural fairness, the substantive civil law, basing on the subjective fault states of tort-feasors, divids the doctrine of fort liability fixation into three kinds. They are the doctrine of liability forwrongs, doctrine of presumptive, wrongs and doctrine of no-fault liability, only the last two of which are attributable to the invertedallocation of the burden of proof. China smedical tort is not special tort of civil substantive law, it should adopt the doctrine of liability forwrongs. Therefore, the invertedallocation of the burden of proof in medical tort is contrary to the substantive justice and procedural fairness, only tomakemedical side trapped into the heavy burden of proof. In order to maintain substantive justice and procedural fairness, medical tort litigation should return to the allocation of the burden of proof under the doctrine of liability for wrongs. The judges can suppport disadvantaged patients by apparent evidence or other rules. Keyword s: medical tort; the allocation of the burden of proof; doctrine of liability forwrongs; reconstruction , , , ; , , , , , , (), , , , [ 1] ,