德国医疗损害赔偿诉讼中表见证明理论的运用研究

The Application of Prima Facie Proof Theory in Action for Medical Damage Compensation in Germany

表见证明是最被广泛阐述的举证责任减轻制度,其在性质上仍属间接证明,不具有实体法性质,在适用上不会改变举证责任的分配,且适用通常完全的证明度。表见证明的适用需以典型事象经过与真伪不明状态的存在为要件。德国实务中,表见证明在医疗诉讼中适用最多,具体有四类典型案例:医疗器材瑕疵使用损害的证明、医疗注射后健康损害的证明、医疗损害责任成立因果关系的证明、医师风险告知义务的证明。实际运用上,典型事象经过要件的欠缺、异物遗留案例的个案判断化、医师始终保有反证的专业优势使得表见证明在适用上遭遇较大的限制。

Prima facie proof is the most widely described system for reducing the burden of proof. It is still an indirect proof in nature, not a substantive law, it will not change the allocation of burden of proof and an usual standard of proof in the application. There should be a typical occurrence and authenticity unknown state in the application of prima facie proof. In German practice, the most of the application of prima facie proof is in the medical litigation, there are four typical cases： the proof of defects in medical equipment using, the proof of health damage after medical injection, the proof of the causal relationship of medical damage, the proof of doctors＇ risk disclosure obligation. In practical application, the lack of typical occurrence, individual judgement in eyewinker-left case, and doctors always maintain the professional advantages of disproof make prima facie proof encounter tremendous restrictions.