医疗纠纷举证责任的法理探讨

Legal Research of the Burden of Proof in Medical Disputes

法院所确定的事实皆系过去的历史事实,为确保裁判的客观性及公正性,事实的确定即非单纯法院主观的认识,须依"证据法则"作合理客观的确定。而当事人主张的事实有争执,在诉讼中即为所称的待证事实或证据的对象。当事人主张有利于己的事实,即有提出证据证明其事实真实性的责任,亦称为举证责任,当事人不能尽举证责任或所举证据不能证明所主张的事实为真正时,即须负有受到败诉判决的危险,此亦即诉讼上"举证之所在,败诉之所在"的真谛。医疗纠纷本身的专业性和复杂性使得举证责任具备了独特的品格。

The facts determined by the court are just the historical facts of the past.In order to ensure the objectivity and the fairness of judgment,the determination of facts is not purely a subjective understanding by the court,which instead has to make reasonable determination based on the ＂rules of evidence＂.When the facts presented by the party concerned are controversial,they are called the facts to be testified or the targets of evidence in a lawsuit.And when the party concerned presents the facts which are advantageous to him/her,he/she is obliged to produce evidence to prove the authenticity of those facts.This is also called the burden of proof.When the party concerned cannot fulfill the burden of proof or the evidence produced cannot prove the authenticity of the facts presented,he/she has to bear the risk of being defeated in a court decision.This is implying to the true essence of the saying,＂Where the proof is,why the defeat is＂.And the burden of proof has been rendered of the distinctive character by medical disputes intrinsic professional and complexity.