医疗纠纷诉讼中要件事实的证明责任分配研究

发布时间：2018-09-12 14:10

【摘要】：本文旨在重新划分医疗纠纷诉讼、针对不同类型案件的要件事实重新探索举证责任分配,除导论外,正文由四章组成,共计6万余字。第一章医疗纠纷诉讼概述。本章界定了医疗纠纷诉讼的概念,并深入分析了医疗纠纷诉讼的特点。医疗纠纷诉讼在我国被分为医疗事故纠纷和医疗过错纠纷,存在很多问题。从合同和侵权的角度去构建医疗纠纷诉讼的类型似乎更为合适。医疗服务合同纠纷诉讼包括一般医疗服务合同纠纷、特殊医疗服务合同纠纷以及临床医学试验纠纷;而医疗侵权纠纷、医疗伦理纠纷以及医疗产品责任纠纷属于医疗损害责任纠纷的范畴。第二章医疗纠纷诉讼中的要件事实。本章介绍了要件事实的概念、特征和诉讼机能,针对不同类型的医疗纠纷诉讼的要件事实进行了有针对性的分析。医疗服务合同纠纷诉讼中的请求权发生事实要求当事人双方意思表示真实,挂号行为可以视为缔结医疗服务合同的标志。医方的抗辩事实可以阻止患方请求权的发生。医疗损害责任纠纷诉讼中的请求权发生事实包括了过错、损害和因果关系,医方的过错表现为医疗服务提供者的行为违反了注意义务的规定;患者的损害包含实际权益的损害和期待利益的损失;因果关系包括责任成立的因果关系和责任范围的因果关系,通常将相当因果关系说作为认定因果关系成立的标准。第三章医疗纠纷诉讼中要件事实的证明责任分配。结合实体法上对医疗纠纷诉讼侵权责任的归责原则以及法律要件分类说的观点,在医疗损害责任纠纷诉讼中应由患方对医方的过错及其所受到的损害承担证明责任;为实现攻击防御双方诉讼上的对等与平衡,采取举证责任转换或减轻的方法有利于减轻患方的证明责任负担。法官可以根据不同的案件情况对医疗纠纷诉讼中双方当事人的举证责任进行裁量分配,对于证明妨碍等特殊情形利用自由心证对案件进行综合性考量。第四章完善医疗纠纷诉讼中要件事实证明责任分配的方法。实现医疗纠纷诉讼中证明责任的合理分配需要从民事诉讼和医学的角度考量多种因素,平衡双方当事人的权益。具体做法是,应当以法律要件分类说作为基本原则,医疗合同纠纷诉讼中的特殊构成要件属于权利发生规范,由患方提供证据证明;而一般构成要件则属于权利妨碍规范,由医方就不存在该项事实承担证明责任。由于合同纠纷实行无过错原则,患方在以医疗服务合同纠纷诉讼为案由要求医方承担责任时无须证明医方过错。在因果关系的证明方面,由患方承担事实真伪不明时的败诉风险,但为了充分保障患方利益,司法实践中应当通过表见证明、存在重大诊疗过失时转换举证责任、赋予医方文书提出义务等方法辅助处于弱势地位的患者,促使法官对侵权事实的成立易于达到盖然性的心证。
[Abstract]:The purpose of this paper is to reclassify the medical dispute litigation and to re-explore the distribution of the burden of proof according to the facts of different types of cases. Except for the introduction, the text consists of four chapters, with a total of more than 60,000 words. Chapter one: summary of medical dispute litigation. This chapter defines the concept of medical dispute litigation, and deeply analyzes the characteristics of medical dispute litigation. Medical dispute litigation in our country is divided into medical malpractice dispute and medical fault dispute, there are many problems. It seems more appropriate to construct the type of medical dispute litigation from the angle of contract and tort. Medical service contract dispute litigation includes general medical service contract dispute, special medical service contract dispute and clinical medical trial dispute; and medical tort dispute, Medical ethics dispute and medical product liability dispute belong to the category of medical damage liability dispute. Chapter two: essential facts in medical dispute litigation. This chapter introduces the concept, characteristics and litigation function of essential facts, and analyzes the important facts of different types of medical disputes. The fact that the right of claim occurs in the dispute litigation of medical service contract requires the parties to express their intention truthfully and the registered act can be regarded as the sign of the conclusion of the medical service contract. The facts of the defense of the medical side can prevent the occurrence of the right of claim of the patient. The fact that the right of claim occurred in the lawsuit of medical damage liability dispute includes fault, damage and causality. The fault of the medical side is that the medical service provider's behavior violates the duty of care. The damage of patients includes the damage of actual rights and interests and the loss of expected interests. Causality includes the causality of the establishment of liability and the causality of the scope of liability, which is usually regarded as the criterion of determining the establishment of causality. Chapter III assignment of burden of proof of essential facts in medical dispute litigation. According to the principle of liability attribution and the classification of legal elements in substantive law, the patient should bear the burden of proof to the fault of the doctor and the damage suffered in the lawsuit of medical damage. In order to achieve the equality and balance between the two sides of the attack, the burden of proof can be reduced by changing or reducing the burden of proof. According to different cases, the judge can distribute the burden of proof of both parties in the medical dispute litigation, and use the free evidence to consider the case synthetically for the special circumstances such as proof hindrance. The fourth chapter consummates the method of burden of proof in medical dispute litigation. To realize the reasonable distribution of burden of proof in medical dispute litigation, it is necessary to consider many factors from the angle of civil action and medicine to balance the rights and interests of both parties. The specific practice is that the classification of legal elements should be taken as the basic principle. The special constitutive elements in medical contract disputes belong to the norms of the occurrence of rights, which are proved by evidence provided by the patients, while the general constitutive elements belong to the norms of obstruction of rights. The doctor bears the burden of proof that the fact does not exist. Due to the principle of no-fault in contract dispute, the patient does not need to prove the fault of the medical party when the lawsuit of medical service contract dispute is taken as the reason for requiring the medical party to bear the responsibility. In the aspect of proof of causality, the patient should bear the risk of losing the lawsuit when the facts are not clear, but in order to fully protect the interests of the patient, the judicial practice should prove that the burden of proof should be changed when there is a major fault in diagnosis and treatment. Giving medical documents and other methods to assist patients in a weak position, to promote the establishment of the facts of infringement is easy to achieve psychological evidence of inevitability.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.1

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