期待权损害研究——借鉴日本延命利益之损害赔偿案的分析

Research on the Damage to Expectant Right——Analysis Based on the Damage Compensation Case of Life Interests in Japan

如何确定医师注意义务的违反与损害后果之间的因果关系,一直是极为复杂和关键的问题,决定着损害责任是否成立以及损害赔偿范围的大小。在此问题上,日本的法律界及司法裁判给出了值得借鉴的探索:一方面,通过利用经验法则,综合考虑证据证明只要具有高度盖然性就可以判定因果关系的成立,从而缓和了患方的举证责任;另一方面,通过确认"期待权"等法益的存在,使得侵权行为因果关系的证明存在可能。

In medical damage cases, how to determine the causal relationship between doctors＇ breach of duty of care and damage consequence has always been a very complicated and key problem, which determines the establishment of damage liability and the range of the damage compensation. On the issue, the exploration worthy of learning is presented by legal profession and judicial judges in Japan. On one hand, by using the rule of thumb,causal relationship can be determined after comprehensive consideration of evidence as long as highly probability can be established, which eases the patients＇ burden of proof; on the other hand, by confirming the existence of legal interests such as expectant right, the proof of causal relationship of tort is made possible.