中国医疗侵权诉讼证明责任分配规则对医疗纠纷化解和建构和谐医患关系有着至 关重要的影响,中国高度重视相关立法完善和规则确立。如何建构科学、合理的医 疗侵权诉讼证明责任分配规则也长期以来受到社会各方关切,亟待研究和完善。总 体而言,中国医疗侵权诉讼证明责任分配规则历经了“谁主张,谁举证”、“举证责任 倒置”、“类型化归责原则下的证明责任分配”、“法规范要件说”、“类型化归责原则 下的证明责任分配体系化建构”五个阶段。纵观这些不同阶段的证明责任分配规则, 不难发现主要其运用了“法规范要件说”、“举证责任缓和”、“证明妨碍”三个民事诉 讼基本法理,其中德国学者罗森贝克提出的“法规范要件说”是前述系列证明责任分 配规则确立的理论根基。笔者认为医疗侵权诉讼领域以“法规范要件说”为绝对法理 根基的顶层设计思路不当。基于医疗行为的高度专业性特征和医患双方对诊疗信息 掌握的不对称性,应当引入“危险领域说”作为医疗侵权诉讼证明责任分配规则确立 的理论根基,并在此基础上确立由医疗机构承担诊疗过错和医疗关系证明责任的规 则。为确保医疗事业的健康有序发展,可以增设医疗机构免责的具体情形,对前述 规则导致对医疗机构产生的个案不公进行修正。同时,针对医疗侵权诉讼证明责任 分配指导原则缺失和相关配套机制不健全的问题,建议确立“诉讼实质平等原则”、 “有效协调医患关系原则”、“公平正义原则”三个基本原则,并健全医疗鉴定制度、 医疗侵权诉讼专家辅助人制度以及医疗责任保险制度三个主要制度。
The rules for distribution of medical litigation certification of China have a crucial impact on the resolution of medical disputes and the construction of a harmonious relationship between doctors and patients, so China attaches great importance to the improvement of relevant legislation and the establishment of rules. How to construct scientific and reasonable the rules for distribution of medical litigation certification has long been concerned by all social parts, and it is urgent to be studied and improved. Generally speaking, the rules for distribution of medical litigation certification of China have gone through five stages, including “who advocates, who has to put to the proof”, “Shifting of burden of evidence”, “the rules for distribution of litigation certification under the principle of typed imputation”, “the legal normative element”, and “the construction of rules for distribution of litigation certification under the principle of typed imputation”. Throughout these different stages of the rules for distribution, it is not difficult to find that it uses three basic theories of civil procedural law, including "legal normative requirements", "ease the burden of proof" and" obstruction of evidence ", which the German scholar Rosenberg proposed " the legal normative element " is the theoretical foundation for the aforementioned series of rules. However, the author believes it is inappropriate that "the legal normative element "is look as top-level of the absolute legal basis in the field of medical infringement litigation. Based on the highly professional characteristics of medical behavior and the asymmetry of medical information between doctors and patients, the " Dangerous area theory" should be introduced as basic theories of civil procedural law for the rules for distribution of medical litigation certification, and on this basis, it is established by the medical institution. The rules of responsibility for diagnosis and treatment faults and medical relationships. In order to ensure the healthy and orderly development of the medical undertakings, it is possible to add specific circumstances for the exemption of medical institutions, and to correct the unfair cases arising from the medical institutions. At the same time, in view of the lack of guiding principles for the distribution of medical litigation certification and the lack of relevant supporting mechanisms, it is recommended to establish the three basic principles, including “principle of substantive equality of litigation”, “effectively coordinate the principle of doctor-patient relationship” and “principle of fairness and justice”, and three main system should be improved, including medical dispute appraisal system, the medical assistant expert support system and the medical liability insurance system.