论中国医疗诉讼证明妨碍的排除规则

서지정보

· 발행기관 : 원광대학교 법학연구소
· 수록지 정보 : 의생명과학과법 / 17권 / 139 ~ 165페이지
· 저자명 : 包冰锋

초록

Under normal circumstances, in civil medical disputes medical institutions hold most of evidence playing an irreplaceable role for medical disputes. This makes it difficult for patients to assert their rights and reflects a situation of majority of evidence owned by one party, which is a prominent problem of the evidence in medical litigation. As a result, obstruction of evidence in medical dispute lawsuit occurs occasionally, especially medical institutions controlling most of the evidence material obstruct evidence related. To this issue, Chinese procedural law just provide the general rules concerning obstruction of evidence. There is no specific detailed rules and regulations related to obstruction of evidence of medical litigation. In the field of substantive law, the main rule is article 58 of Tort Liability Law. It provides that a medical institution shall be at fault constructively for any harm caused to a patient under any of the following circumstances: violating laws, administrative regulations or rules; or any other provision on the procedures and standards for diagnosis and treatment; Concealing or refusing to provide medical records relevant to a dispute; falsifying, tampering or destroying any medical records. Although the article 58 of Tort Liability Law has regulated behavioral consequence of obstruction of evidence in medical litigation in the form of higher legal status. However, there are still some problems. Therefore, it is necessary to reform and improve the rules about obstruction of evidence of Chinese medical litigation from the two aspects of constitutive requirement and legal effect. In terms of constitutive requirement, the subjective fault of obstruction of evidence of medical include intention and negligence. In the case of the legal effect, if there is a case under article 58 of Tort Liability Law, according to the law judge shall presume that medical institutions are in fault. If obstructive behavior beyond article 58 of Tort Liability Law, the court can presume the claim of applicant is real, or directly identified intruder implied admission, or lower the standard of proof in these cases and transfer the burden of proof in necessary, or take compulsory measures such as imposing a fine or detention.

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