| Summary: | 碩士 === 國立臺灣海洋大學 === 海洋法律研究所 === 94 === This thesis is trying to probe the allocation of burden of proof on the plaintiff and defendant in the controversial medical lawsuit cases from the civil perspective of medical malpractice. The purpose is to clarify the appropriate responsibility attribution.
The study firstly illuminates the civil code requirement basis of the medical lawsuits, and then treats the reversal issue of legislative burden of proof. It further discusses about the theory of burden of proof as well as the explanation and application of the article 277 of Taiwan Code of Civil Procedure. Afterwards, it establishes the general guideline of the allocation of burden of proof.
The medical lawsuits are very unique compared with lawsuits of other kinds. If the responsibility attribution of burden of proof, which comes out from the general guideline of the allocation of burden of proof, is not anticipated by one party, the court must make an adjustment. The thesis discusses in detail based on the comparative about the lessening of burden of proof on medical lawsuit cases of several countries and Taiwan's practical operation.
The thesis claims that the adjustment of allocation of burden of proof should be regarded as lessening the burden of proof more than as transferring the burden of proof. Unless there occur any facts like significant medical defects, violation of duty of disclosure, destroying or hiding a piece of evidence, the transfer of the burden of proof cannot be applied. This is because that the transfer of the burden of proof has a great impact and easily causes a doctor to take the duty of result for the medical action. It is unfair for the doctor and practically changes the allocation of burden of proof of civil code.
It is indicated in the thesis that when considering lessening the burden of proof, the cases should apply to the doctrine of res ipsa loquitur, doctrine of appearance proof, destroying or hiding a piece of evidence or doctrine of informed consent by referring to legislative cases and court practice of other countries. In doing this, the theory basis of Taiwan's medical lawsuits' lessening burden of proof is thus enhanced.
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