论表面证据在医疗损害案件中的适用

发布时间：2018-05-21 18:48

本文选题：表面证据 + 医疗侵权　；参考：《厦门大学》2014年硕士论文

【摘要】：近年来,在深受德日证明责任理论影响的我国诉讼法学界,不少学者纷纷将视线从抽象的证明责任转移到具体的证明责任,从客观证明责任的分配到实践中证明行为理论的研究：与此同时,也有学者开始介绍英美国家的重在发现事实的证据法规则,希望能为我国证据法提供不同的思路和启发。本文基于证明责任理论从客观证明理论向诉讼程序中具体证明行为和证明评价的转向,希望通过介绍表面证据规则在医疗损害案件中的适用,探讨在诉讼中不断转移提供证据责任的可能性。表面证据(prima facie evidence),又称初步证据,布莱克法律大辞典将其解释为“除非相反的证据被提出,否则据此证据已能确立某项事实或支撑某项判决。①其能导致一项证据推定或者并不排除其他证据,但除非对方提出相反证据,表面证据被视为充足。表面证据在两层意义上被使用：第一层意义上是使得案件成立的表面证据。如果不具备此表面证据,法官可不经陪审团直接宣告案件不成立。第二层意义上的表面证据是如果对方不提出其他证据,案件的事实裁判者依据表面证据做出对提出表面证据一方有利的判决。表面证据规则与大陆法系的表见证明可能会有所混淆。但是,基于法系和诉讼程序的不同,作为证据规则的表面证据和作为制度的表见证明还是有所区别的。即在具体诉讼中,实体法或法官自由裁量认为某证据是一种表面证据,而表见证明制度更侧重于证明评价。当然,在最终效力上,两者都接近于可推翻的推定。表面证据规则从诉讼的角度分析证明责任,将案件中的证明责任分配分为各个阶段,不断在当事人之间进行举证责任的转移,有利于发现真实。适用表面证据规则的前提在于考察其源流,界定其概念,发现其运行机理,明确其适用范围。本文除引言和结语外,共分为四章。第一章表面证据规则。表面证据语义为“第一眼的证据”。表面证据有两层含义。第一层意义上是使得案件成立的表面证据。如果不具备此表面证据,法官可不经陪审团直接宣告案件不成立。第二层意义上的表面证据是如果对方当事人不提出其他证据,案件的事实裁判者将做出对提出表面证据一方有利的判决。第二章我国医疗损害纠纷的证明责任分配。我国医疗损害纠纷的证明责分配有其历史沿革,分为三个阶段。第一个阶段为“谁主张,谁举证”的阶段,该阶段将医疗纠纷纳入法治进程；第二个阶段为“举证责任倒置”阶段。迫于医疗纠纷中患方举证能力薄弱的现实考虑,将证明责任加诸医院一方,医院方不堪重负；第三个阶段为《中华人民共和国侵权责任法》(以下简称《侵权责任法》。)实施后,分类型区分医疗损害举证责任。《侵权责任法》颁布后,我国一些省市高院也制定了医疗损害案件的审判指导意见。其中多有关涉表面证据的内容。第三章美国医疗侵权理论及案例解读。美国医疗侵权理论发展于19世纪中期,至今形成了完备的侵权法体系。在医疗损害案件中,原告应当承担建立表面上成立的案件的责任。且该案件是有其要件的。首先,医生应当存在一定的义务；其次,医生未达成该义务；再次,因果关系要件。最后,损害的存在。该四点均由原告承担一定的证明责任。如果原告未能建立表面上成立的案件,医疗机构方可以申请法官不经陪审团直接裁判。第四章我国医疗损害案件适用表面证据规则的可能性之探讨。出于发现真实,实现个案正义的考虑,应尽可能在诉讼的具体进程中通过技术性规则裁判案件而减少适用客观证明责任分配的场景。表面证据规则是本文所选取的技术规则,希望通过探讨其适用的可能以促进我国证明责任学说的发展。在我国司法实践中,法院一方面制定审判意见以成文法形式规定表面证据,另一方面在个案中适用表面证据规则进行裁判。可见表面证据规则有其实践的需求。适用表面证据规则的路径可以考虑细化表面证据规则与赋予法官自由裁量权并行。在细化表面证据规则方面,在医疗损害案件中明确规定何为过失的表面证据、何为因果关系的表面证据。与此同时,司法实践总会有新问题,因此,赋予法官在真伪不明时适用表面证据规则的空间尤为必要。
[Abstract]:In recent years, many scholars have shifted their view from the abstract burden of proof to the specific burden of proof in the field of litigation law influenced by the theory of the German and Japanese burden of proof. At the same time, some scholars have begun to introduce the fact that the British and American countries have discovered the facts. The rules of evidence law hope to provide different ideas and inspiration for our country's evidence law. This article is based on the turn of the theory of proof responsibility from the objective proof theory to the specific proof of the action and the evaluation of the procedure. It is hoped that the application of the rule of surface evidence in the medical damage case will be introduced, and the continuous transfer of evidence in the lawsuit is discussed. The possibility of responsibility.
The surface evidence (prima facie evidence), also known as preliminary evidence, is interpreted by the Black legal dictionary as "unless the opposite evidence is put forward, otherwise the evidence can establish a fact or support a decision. Evidence is regarded as sufficient. Surface evidence is used in the sense of two layers: the first layer is the surface evidence that makes the case set up. If it does not have this surface evidence, the judge can not declare the case directly without the jury. The second layer of the surface evidence is that if the other party does not mention other evidence, the facts of the case are based on the evidence. Surface evidence is beneficial to the presentation of surface evidence. The rule of surface evidence may be confused with the evidence in the continental law system. However, based on the difference between the legal system and the litigation procedure, the surface evidence as the rule of evidence is different from that of the system. The official discretion considers that a certain evidence is a surface evidence, while the statement of evidence is more focused on the proof of evaluation. Of course, in the final effect, both are close to the presumption of overthrow.
The rule of surface evidence is to analyze the burden of proof from the angle of litigation, divide the distribution of burden of proof in the case into various stages and constantly transfer the burden of proof between the parties, which is beneficial to the discovery of truth. The premise of the application of the rule of surface evidence is to investigate its origin, define its concept, find its operating mechanism and clarify its scope of application.
In addition to the introduction and conclusion, this article is divided into four chapters.
The first chapter is the rule of surface evidence. The surface evidence semantics is "the evidence of the first eye". The surface evidence has two meanings. The first layer is the surface evidence that makes the case set up. If it does not have this surface evidence, the judge can not declare the case directly without the jury. The second layer of semantic surface evidence is if the opposite party is the party. Without other evidence, the facts of the case will be judged by the referee.
The second chapter is the distribution of the burden of proof in the dispute of medical damage in our country. The distribution of the burden of proof of the medical damage dispute in our country has its historical evolution, which is divided into three stages. The first stage is the stage of "who advocates, who raises the evidence", the medical dispute is brought into the process of the rule of law in this stage; the second stage is the stage of "the inversion of the burden of proof". In the third stage, after the implementation of the tort liability law of People's Republic of China (hereinafter referred to as the tort liability law >.), the burden of proof of medical damage is divided into two stages. After the promulgation of the tort liability law, some provinces and municipalities in China have also made a system of higher institutions. There are many Guiding Opinions on medical injury cases, many of which involve surface evidence.
The third chapter of the United States medical tort theory and case interpretation. The United States medical tort theory developed in the middle of the nineteenth Century, and has formed a complete system of tort law. In medical damage cases, the plaintiff should bear the responsibility of establishing a case established on the surface. And the case has its requirements. First, the doctor should have certain obligations; Second, the doctor has not reached the obligation; again, the elements of causality. Finally, the existence of the damage. The four points are all responsible for the plaintiff. If the plaintiff fails to establish a case on the surface, the medical institution can apply for a judge without a direct jury referee.
The fourth chapter is to discuss the possibility of applying the rule of surface evidence in the case of medical damage in our country. In order to find the truth and realize the case justice, we should try to reduce the application of the case of technical rules in the specific process of the lawsuit and reduce the application of the objective burden of proof. The table evidence rule is the technical rule selected in this article. It is hoped to promote the development of the doctrine of the burden of proof in our country by discussing the possibility of its application. In the judicial practice of our country, the court on the one hand formulates the trial opinions on the surface evidence in the form of grammatical form, on the other hand, it applies the rule of surface evidence in the case. It can be seen that the surface evidence rules have its practical needs. The path of the rule can consider the refinement of the rule of surface evidence and the concurrency of the discretion of the judge. In the refinement of the rules of the surface evidence, what is the surface evidence of the negligence in the medical damage case, and what is the surface evidence of the causality. At the same time, the judicial practice always has a new problem, so the judge is unidentified in the authenticity. It is particularly necessary to apply the space of surface evidence rules.
【学位授予单位】：厦门大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923;D925.1

【参考文献】