医疗侵权诉讼证明责任分配研究

发布时间：2018-09-05 06:13

【摘要】：医疗侵权诉讼中证明责任的分配是诉讼中的重要问题之一。由于医患双方信息不对称等现实差距,使医疗侵权诉讼具有专业性、证据偏在、复杂性的特点。尽管我国的医疗侵权诉讼制度日渐完善,但在诉讼中的证明责任分配仍面临以下困境:立法分配前后左右摇摆;同时,理论上存在证明责任正置、倒置、法院自由裁量等不同观点;实践分配中也存在两难。对于证明责任分配,大陆法系国家普遍主张当事人对其主张的权利,根据实体法所要求的构成要件负担证明责任。在整个诉讼过程中,通过对医患双方当事人与法院三者之间的利益衡量、追求诉讼正义实现诉讼价值等理论考量,结合法律依据、诉讼障碍的治理、诉讼效益等现实依据,这类诉讼中的证明责任由作为原告的患者一方承担更为适宜。在此基础上,通过对德国医疗侵权诉讼中广泛采用的表见证明理论的分析,从法院、诉讼当事人与诉讼程序等多角度探讨其应用价值,主张在医疗侵权诉讼中我国应当借鉴和运用德国的表见证明理论解决司法实务中的理论与实践障碍,促进诉讼中医患双方当事人平等对抗,以此实现患者一方证明责任的减轻与医疗机构权利保障的双重目的,达到解决医患纠纷的效果。
[Abstract]:The distribution of burden of proof in medical tort litigation is one of the most important issues. Due to the gap of information asymmetry between doctors and patients, medical tort litigation has the characteristics of specialization, evidence bias and complexity. Although China's medical tort litigation system is improving day by day, the distribution of burden of proof in litigation is still faced with the following difficulties: the legal allocation is left and right, and at the same time, in theory, the burden of proof is being put in reverse, and the burden of proof is reversed. Court discretion and other different points of view; there are also dilemmas in practical distribution. With regard to the distribution of burden of proof, civil law countries generally claim that the parties should bear the burden of proof according to the constitutive requirements required by substantive law. In the whole litigation process, through the weighing of the interests between the doctor-patient parties and the court, the pursuit of litigation justice to realize the value of litigation and other theoretical considerations, combined with the legal basis, the treatment of litigation obstacles, litigation benefits and other practical basis, The burden of proof in such proceedings is more appropriately borne by the plaintiff's party. On this basis, through the analysis of the theory of apparent proof, which is widely used in the medical tort litigation in Germany, this paper discusses its application value from the courts, litigants and proceedings, etc. In the medical tort litigation, our country should draw lessons from and apply the German apparent proof theory to solve the theoretical and practical obstacles in the judicial practice, and promote the equal confrontation between the doctor-patient parties in the lawsuit. In order to achieve the double purpose of reducing the burden of proof on one side of the patient and guaranteeing the right of the medical institution, the effect of resolving the doctor-patient dispute can be achieved.
【学位授予单位】：太原科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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