侵权责任法与医疗过错民事责任

Abstract

In civil case，although medical dispute case has no majority, it has great social influence and has high degree of public concern. how to deal with medical dispute case objectively and fairly is a hotpot and difficult problem to be urgent need to solve in civil law. Since 1st September 2002, the implementation of “regulations on handling of medical accident”, for medical dispute, china has been continuing to apply the two element system of law. It obviously violate unification of legal system and result in greater social contradiction. So “Tort liability law” executed from 1st July 2010 regulate medical liability of damage in medical chapter and systematically specify medical cases from the aspect of law system, thus it end the two element system of law application. “Tort liability law” unify the main points of a case of application of medical damage liability in the courts and regulate new medical damage liability relief rules and initially establish a unified medical damage relief system. But there are many deficiencies in “Tort liability law”. For example, the relevant provisions of the burden of proof for medical damage compensation is not clear, the regulation of providing medical record is not reasonable, it can’t reflect the particularity of the medical damage compensation in application of personal injury compensation standards, Determination of the “medical level of the time” is difficult, The distribution of the burden of proof is unfair and it doesn’t regulate relevant system about sharing responsibility of medical damage and so on. If we wouldn’t pay enough attention to these problems, it will not be conducive to resolve the contradiction between doctors and patients. Basing on the relevant regulation of medical damage civil liability of “Tort liability law”, this paper would discuss the success and failure of this relevant regulation mainly on principle of imputation and burden of proof and judgment standard of malpractice and the scope of medical damage compensation responsibility, introduce academic insights, reveal the position of this paper.