由于立法规定患者承担医疗侵权诉讼证明责任,加之医患双方实力不对等、因证据偏在引发的诉讼双方武器不平等,医疗诉讼证明妨碍行为层出不穷,其在实践中存在认可率偏低、行为界定标准模糊、救济措施欠缺合理性等诸多问题,已影响到法官对案件事实的认定。欲化解现实之困境,必须摆脱现有理论桎梏,追溯证明妨碍问题产生之根源,以医疗诉讼证明责任分配法则为机理,构建“谁主张,谁举证”和“不主张,亦举证”的双重制约规则。在此一理论基础上,借鉴域外之经验,结合实际,从妨碍行为、具体手段和正当程序方面进行医疗诉讼证明妨碍之立法完善。妨碍行为方面,鉴于立法规定之局限,在诸如主观样态、行为方式、因果关系、损害结果等要件均缺乏可操作性规则,导致法官对证明妨碍制度运用状况不佳,总体采纳率偏低,须从主观样态和客观行为样态角度多维度地分层界定证明妨碍行为,方可适应实践发展之需求;具体手段方面,肇因于对医疗诉讼证明妨碍行为的法律规制仅限于“推定过错”这一单一而粗犷型手段,陷入“推定过错”救济过度和救济不足之窘境,有必要突破现有理论桎梏,以救济损害、回复公平为导向,对证明妨碍行为的规制手段予以创新性变革,采取恢复证明妨碍前之状态、降低证明度、直接或间接推定主张事实为真的进阶式规制手段;正当程序方面,即是站在妨碍方的立场上保障其正当权益,方能真正实现诉讼正义,主要从程序保障救济机制入手,对证明妨碍行为的认定构建一整套体系性程序,在恢复申请方利益的同时,充分保障妨碍方的救济权利,实现诉讼实质公平。最终实现医疗诉讼证明妨碍行为的体系化立法完善,以指引司法实践的正轨运行,化解现实之困境,为达至社会的实质性正义创造必要之前提。
As a result of the legislation stipulates that patients bear the burden of medical tort litigation, coupled with the strength of both doctors and patients is not equal because of evidence-induced litigation between the two sides of the weapon inequality, medical litigation that impedes the endless flow of behavior. In practice, there are many problems such as low recognition rate, vague standards of behavior definition and lack of rationality of relief measures, which have affected the judge's cognizance of the facts of the case. In order to resolve the plight of reality, it is necessary to get rid of the existing theories and trace back the root causes that hinder the emergence of the problem. With the principle of the law of liability distribution in medical litigation as the mechanism, we should establish the double restriction of "who advocates, who evidences" and "does not advocate but also evidences" rule. On the basis of this theory, drawing on the experience outside the territory and combining with the reality, it is proved that the legislation is hindered by medical litigation in terms of obstructing behaviors, specific measures and due process. In terms of obstruction of behavior, in view of the limitations of legislative provisions, lack of operable rules such as subjective patterns, behavior patterns, cause and effect, damage results and other factors lead to the judge's failure to prove that the system is in poor use and the overall adoption rate is low, It is necessary to multi-dimensionally delineate the impeding behaviors from the perspectives of subjective and objective behaviors so as to meet the needs of practical development. Specific means, due to medical litigation proved that the legal regulation of obstruction is limited to the "presumption of fault," a single and rough means, "presumption of fault" over relief and relief of the dilemma, it is necessary to break the existing theory of constraints, Take relief and fairness as the guide, make innovative changes to the regulatory instruments that prove obstructive behavior, take the proof of restoration that hinders the status quo ante, lower the degree of proof, and directly or indirectly presume the advanced regulatory means of claiming the truth as truth; Due process, that is, standing on the obstruction of the party's position to protect their legitimate rights and interests, can the real justice, mainly from the procedural safeguards relief mechanism to prove that the identification of obstructive behavior to establish a set of system procedures in the restoration of the applicant Interests, at the same time, fully protect the obstruction of the parties the right to relief, to achieve substantive and fair litigation. Ultimately, medical litigation proves the perfection of systematic legislation that hinders the behavior, so as to guide the normal operation of judicial practice, resolve the plight of reality and create the necessary preconditions for reaching the substantive justice of the society.