On the Administrative Litigation and Reconciliation System in China

With the development of our society, the object and scope of government＇ s administrative function are expanding day by day.Facing the complicated new situation, new problem and the enhancement of the rule of law, the difficulty of hearing the administrative case isincreasing. This article mainly analyzes the present situation of the reconciliation of administrative litigation, discusses how to construct ourcountry＇ s administrative litigation reconciliation system, promote the administrative trial work smoothly, and better protect the legitimate rightsand interests of the parties.

Investigation of litigation in trauma orthopaedic surgery

BACKGROUND It has been said that the number of orthopaedic claims has increased in the last few years. Investigation through the most prevalent cause would help to prevent further cases.AIM To review the cases of medical complaints in orthopedic patients who had been involved in a traumatic accident.METHODS A retrospective multi-center review of trauma orthopaedic-related malpractice lawsuits from 2010 to 2021 was conducted utilizing the regional medicolegal database. Defendant and plaintiff characteristics along with fracture location, allegations, and litigation outcomes were investigated.RESULTS A total of 228 claims referred to trauma-related conditions with a mean age of 31.29 ± 12.56 were enrolled. The most common injuries were at hand, thigh, elbow, and forearm, respectively.Likewise, the most common alleged complication was related to malunion or nonunion. In 47% of the cases, the main problem that led to the complaint was the inappropriate or insufficient explanation to the patient, and in 53%, there was a problem in the surgery. Eventually, 76% of the complaints resulted in a defense verdict, and 24% resulted in a plaintiff verdict.CONCLUSION Surgical treatment of hand injuries and surgery in non-educational hospitals received the most complaints. The majority of litigation outcomes were caused by a physician’s failure to fully explain and educate the traumatic orthopedic patients and technological errors.

The Protection of Right of Minors to Express Their Opinions in Family Litigations

The right of minors to express their opinions in family litigations refers to minors,who have a certain degree of mental capacity and assertiveness,having the right to express their opinions on the arrangements or decisions related to themselves when the courts handle familial litigation cases involving their interests,and to request the courts hear their opinions.In essence,the right of minors to express their opinions in family litigations belongs to the basic procedural rights of minors as well as judicial beneficiary rights.As for the protection of the right of minors to express their opinions in family litigations,recognizing the status of minors as independent subjects of rights is the logical premise,the procedural guarantee for the rights of the substantive parties involved is the direct cause,and ensuring the best interests of children is the fundamental reason.In order to protect the right of minors to express their opinions in family litigations,China should standardize the mechanisms for judges to hear the opinions of minors directly,improve the mechanisms for family investigators,and establish mechanisms for representing the interests of minors.

Corporate Litigation,Reputation and Top Executive Turnover-Considering the Moderating Roles of Political and Legal Conditions

With the rapid development of China's economy,more and more listed companies have to face frequent corporate litigation.As corporate lawsuits are on the rise,it is necessary to study the measures taken by the company when a corporate litigation occurs.Some scholars'research indicates that top executive turnover may be one of the countermeasures,but few scholars have discussed this issue in the Chinese market.Our research uses 13435 samples of Chinese market,takes the company's reputation as an observing point,and studies the relationship between corporate litigation and top executive turnover.In addition,due to the special political environment and the large differences in the legal environment between different provinces in China,we have further explored the moderating role of political conditions and legal conditions.It is worth mentioning that our empirical research method is the propensity score matching(PSM),and by this way we can easily avoid sample selectivity bias.Finally,a robust experimental conclusion is obtained:corporate litigation and top executive turnover are significantly positively correlated,and this correlation will be adjusted by political and legal conditions.Our research enriches the field of corporate litigation and also have certain guiding significance for the social construction of the rule of law in China.

Research on Environmental Public Interest Litigation in Taiwan

As germination and rise of public environmental awareness in Taiwan, large-scale air pollution, water pollution, noise, land subsidence and other public hazards harming human health and living environment caused by various production or consumption activities are generated. Facing the situation of environment increasingly aggravates, environmental public interest litigation system is constructed. First, Article 9 of Administrative Procedure Law stipulates public interest litigation;then ,Article 34 of Environmental Basic Law cleady stipulates important elements of public interest litigation. In the research, taking the first environmental public interest litigation in Taiwan as the example, collusion process between government and developer, and private environmental protection groups finally obtaining victory through the continuous effort and litigation are illustrated, thereby uncovering so-called ＂legal＂ saying by government and developer. Environmental maintenance and improvement is the duty of every citizen should do, but not only the duty of govemment, which is mentality of environmental public interest litigation development should have and road must take.

Empirical study of the dilemma regarding preliminary proof of causality and methods used by victims in China's environmental health litigation

Environmental health incidents have occurred frequently in recent years;in China,however,litigation has not been effective in protecting the rights and interests of victims due to their heavy burden of proof.In order to mitigate the burden of proof for victims,the environmental judicature in China introduced the rule of inversion of burden of proof;this means that the victim only assumes the preliminary burden of proof,but in practice it has not been sufficient.Victims in environmental health litigation still face many difficulties in proving causality.Based on the statistical analysis of judicial big data,this paper demonstrates three dilemmas faced by victims.First,the preliminary burden of proof of causality has a high standard.Second,the victim's ability to produce evidence is low.Third,the casual relationship between pollution behaviors and health damage is difficult to identify.When examining the possible legal instruments,there are three aspects to the causes of these dilemmas:theory,judicial practice,and society.The theoretical aspect manifests as the differences between the rule of inversion of burden of proof and the presumption of causality;the practical aspect manifests as the lack of an identification system for personal injury;and the social aspect manifests as the victim's lack of economic,scientific,technological,and information resources,as well as the absence of assistance from government sectors and social organizations.Combining Chinese law with judicial practice,this paper proposes a solution to the dilemma of victims needing to prove causality in environmental health litigation.On the basis of clarifying the theoretical differences between the inversion of burden of proof and the presumption of causality,China should adhere to the rule of inversion of burden of proof,establish an identification system for personal injuries caused by environmental pollution,and use methods such as epidemiological causality,indirect counterevidence,and prima facie bewies.Furthermore,the full functions of the government and social organizations must be brought into play.This will not only help victims demonstrate causality,it can also help victims achieve equitable relief.

National Environmental Policy Act of the United States and Its Application in Climate Litigation——Evaluating Litigation Case by Friends of the Earth on Export-Import Bank of the United States and Overseas Private Investment Corporation

Because that American government and congress hold a negative attitude on responding to climate change issue, people transfer the battle stage of climate change to the court,and hope to promote government and large energy companies actively responding to climate change issue via litigation form. A large amount of related litigation appears,and a kind of special litigation type is gradually formed, namely climate change litigation. National Environmental Policy Act of the United States is one of important legal weapons used by prosecutor in climate change litigation. In National Environmental Policy Act, it stipulates environmental impact evaluation system which has close relationship with climate change litigation. The system requires that federal agency ＂ should compile detailed environmental impact report （EIS） on major federal action which significantly affects human survival environment quality＂. Litigation case of Export - Import Bank of the United States and Overseas Private Investment Corporation by Fdends of the Earth, Green Peace, Boulder City, etc. is typical one related to the act. We try to evaluate and analyze text and case of the act.

The Role of Medical Literature, Clinical Trials and Experimental Research in Drug Product-Injury Litigation: A Primer with Two Examples

When any type of product has been ordered to be removed from the marketplace by a governmental regulatory body, that action is a powerful indicator that the product has been determined to be unsafe for further use, thereby branding the product as defective and opening up the possibility of product liability litigation. When the product is a drug or medical device, it is especially serious since the possibility of personal injury (acute and/or chronic) or death may occur. Needless to say, in these situations, product injury litigation will almost surely follow. We review the definition and requisite claims needed to establish drug product liability, and the role that the medical literature, clinical trial data, and even experimental research data can play in product (drug)-injury litigation. We show how each of these resources played a significant role in two well-known cases: Fen-Phen and thimerosal. The ultimate goal of such knowledge is to make better informed decisions about drug safety.

Anesthesia Related Closed Claims and Litigations at the Detroit Medical Center: Analysis, Lessons Learned, and Conclusions

The analysis of closed claims and litigations can provide an invaluable tool to improve patient safety by minimizing adverse anesthesia-related outcomes. Analysis of collective data describing such claims is integral to develop new guidelines aimed to reduce adverse anesthesia-related events. In this study, we give a descriptive analysis of anesthesia-related claims at the Detroit Medical Center, Detroit, MI, USA. The study analyzed different components in anesthesia-related closed claims and litigations such as medical, demographic and socio-economic factors. From 67,000 procedures in anesthesiology care provider, related cases claims were made in 0.057% (38/67,000) of all cases. The majority of claims involved procedures involving Caucasian females aged 51-55 years. The highest risk periods involved early shift times during Monday and Tuesday, particularly of procedures performed during August. About 33% of all cases in which death occurred involved patients who received an Obstetrics/Gynecology or an Orthopedic procedure under general anesthesia. The majority of closed claims and litigations cases were distributed between procedures treating nerves injuries and anoxic encephalopathy. The OR and PACU at urban hospitals had the highest claim rates. MD anesthesiologists constituted the lowest proportion of all anesthesia providers involved in closed claims incidents. The average compensation paid was predominately in the range of $200,000-$250,000. In addition to reporting anesthesia related factors involved in closed claims and litigations this study also includes a series of recommendations which may work as a framework for improving anesthesia practices.

Medical malpractice litigation involving otolaryngology residents and fellows:A case-based 30-year review

BACKGROUND Errors,misdiagnoses,and complications can occur while trainees are involved in patient care.Analysis of such events could reveal areas for improvement by residency and fellowship programs.AIM To examine lawsuits tried at the state and federal level involving otolaryngology trainees.METHODS The LexisNexis database,an online legal research database containing state and federal case records from across the United States,was retrospectively reviewed for malpractice cases involving otolaryngology residents or fellows from January 1,1990 to December 31,2020.Case data collected:Plaintiff/trainee/defendant characteristics,allegations,medical outcomes,and legal outcomes.RESULTS Over the study period,20 malpractice lawsuits involving otolaryngology trainees were identified.Plaintiffs raised numerous allegations including procedural error(n=12,25.5%),incorrect diagnosis and/or treatment(n=8,17.0%),and lack of knowledge of trainee involvement(n=6,12.8%).Nine cases(45%)had verdicts in favor of the plaintiff,whereas 5 cases(25%)had verdicts in favor of the defense.Six cases(30%)ended in a settlement.Awards to plaintiffs were heterogenous,with a median of$617,500(range$32K-17M)for settled cases and verdicts favoring plaintiffs.CONCLUSION The findings enclosed herein represent the first published analysis of trainee involvement in otolaryngology malpractice cases held at the state/federal level.Otolaryngology trainees can be involved in lawsuits for both procedural and nonprocedural events.This study highlights the importance of education specifically in the domains of procedural errors,informed consent,proper diagnosis/management,and clear communication within patient care teams.Training programs should incorporate these study findings into effective simulation courses and didactic sessions.Educating trainees about common pitfalls holds the promise of decreasing healthcare systems costs,reducing trainee burnout,and,most importantly,benefiting patients.

Experts in Natural Resource Damages and Toxic Tort Litigation

Expert testimony plays a critical role in environmental and toxic tort litigation [1]. While most litigation settles, the work of an expert should, from the outset, be prepared with trial in mind. First and foremost, an expert, using the appropriate expertise, must be able to resolve questions that will assist the trier of fact in making determinations necessary under the law applicable to the case. In addition, an expert must demonstrate a solid scientific foundation in all of his or her opinions. Once armed with the opinions reached in the case, the forensic expert should work with the trial team to simplify proof, clarify the presentation and integrate it with other trial proof and themes [2]. This effort should include the realistic identification of any perceived or real shortcomings regarding the information available, the approach taken by or conclusions reached by the expert. Ongoing communication between the trial team and the expert throughout the discovery and pre-trial litigation is essential.

Flowcharts of Patent Prosecution and Litigation Procedures

I. Procedure for Filing and Examination of Patent Applications and Grant of Patents (at the State Intellectual Property Office of China) By Wu

Research and Reference of the Authorized Generic Drug System in the US

Objective To study the significance of authorized generic drugs due to the successive relevant documents issued by China’s government in recent years,which clearly stipulated that China should establish a drug patent linkage system.Methods The authorized generic drugs play an important role in keeping the balance between brandname drugs and generic drugs in the US.Therefore,this system was investigated,focusing on its difference from independent generics,marketing procedures,application in patent litigation and legitimacy analysis through case evidence.This analogy analysis could provide a reference for the research of authorized generic drug systems in China.Results and Conclusion As an important factor affecting the balance between brand-name drugs and generic drugs,authorized generic drugs should be comprehensively analyzed and discussed,and a suitable system for China’s national conditions should be established by referring to the experiences of the US.

The Empirical Investigation and Improvement Path of Judicial Protection of Civil Litigation Rights in China

The close coupling of civil litigation rights and human rights mean how well litigation rights are realized can directly or indirectly affect the judicial protection of human rights.Therefore,human rights protection in the field of civil litigation should take the right of civil litigation as the starting point and core.Based on a sample questionnaire survey of judges and lawyers,this paper conducts an empirical analysis and proposes that the exercise of this right should be taken as the main line to build a comprehensive protection mechanism for this right to realize its role in providing an institutional guarantee for human rights protection.It specifies three aspects:first,the process of filing a case should uphold the freedom and equality of the right to initiate litigation,remove substantial obstacles that affect the filing of the case,and ensure access to justice for disadvantaged groups;second,the trial procedure should have strengthened checks and balances on judicial power to ensure the right of litigation is compromised,and respects the procedural subject status of the two parties to realize equal protection of both parties;the third is to promote the implementation and improvement of relief for this right in the supervisory procedure,clarify the boundary of its relief by procuratorial supervision,and enhance the comprehensiveness and accuracy of the relief.

Relief for Defendants Whose Litigation Rights Have Been Infringed upon by Courts: Problems and the Way Out

In regard to the people’s court’s infringement upon the litigation right of defendants,there are two relief means in our country:procuratorial supervision and appeal,neither of which can realize the goal of relief.The conflict between interrogation and defense has to do with the lack of relief mechanism.To solve the problem concerning relief to the defendant whose litigation right is infringed upon the court,independent procedural appeal mechanism must be established,the relationship between it and factual appeal must be properly dealt with.The procedure for procedural appeal should be made in accordance with the characteristics of procedural appeal.

Protection of Human Rights through Administrative Litigation——An interview with Professor Zhan Zhongle,School of Law,Peking University

Question： Would you elaborate on the progress China has made under the state policy of reform and opening-up in improving the system of administrative litigation？ Answer： Efforts-in this reguard began in 1982, with publication of the Law of Civil Procedures （for trial implementation）.

Diffusion tensor imaging in the courtroom:Distinction between scientific specificity and legally admissible evidence

Interest and uptake of science and medicine peer-reviewed literature by readers outside of a paper’s topical subject,field or even discipline is ever-expanding.While the application of knowledge from one field or discipline to others can stimulate innovative solutions to problems facing modern society,it is also fraught with danger for misuse.In the practice of law in the United States,academic papers are submitted to the courts as evidence in personal injury litigation from both the plaintiff(complainant)and defendant.Such transcendence of an academic publication over disciplinary boundaries is immediately met with the challenge of application by a group that inherently lacks in-depth knowledge on the scientific method,the practice of evidence-based medicine,or the publication process as a structured and internationally synthesized process involving peer review and guided by ethical standards and norms.A modern-day example of this is the ongoing conflict between the sensitivity of diffusion tensor imaging(DTI)and the legal standards for admissibility of evidence in litigation cases of mild traumatic brain injury(mTBI).In this review,we amalgamate the peer-reviewed research on DTI in mTBI with the court’s rationale underlying decisions to admit or exclude evidence of DTI abnormalities to support claims of brain injury.We found that the papers which are critical of the use of DTI in the courtroom reflect a primary misunderstanding about how diagnostic biomarkers differ legally from relevant and admissible evidence.The clinical use of DTI to identify white matter abnormalities in the brain at the chronic stage is a valid methodology both clinically as well as forensically,contributes data that may or may not corroborate the existence of white matter damage,and should be admitted into evidence in personal injury trials if supported by a clinician.We also delve into an aspect of science publication and peer review that can be manipulated by scientists and clinicians to publish an opinion piece and misrepresent it as an unbiased,evidencebased,systematic research article in court cases,the decisions of which establish precedence for future cases and have implications on future legislation that will impact the lives of every citizen and erode the integrity of science and medicine practitioners.

Judicial Typification of Human Rights Protection Amid Climate Risks:Legal Analysis and Path Choice

In accordance with the canonical sources of the right of legal claim,the targets of judicial review,and the intensity of judicial review intervention policies,lawsuits that directly and indirectly activate the function of human rights protection amid climate risks can be divided into the following categories:climate change lawsuits based on international human rights law,climate change lawsuits based on the domestic constitution,and judicial review of administrative procedures.Due to the singularity of the legal status and force of international human rights law,its“direct applicability”and“explanatory applicability”limit its function in protecting human rights;Climate change lawsuits based on domestic constitutions have the identification of basic right of claim,the judgment of basic rights and function,and the scope of state obligations as the judgment process.Factors such as the difficulty in right typification caused by the integration of climate law and interests,the expansion of discretionary and administrative power in legislation under the context of risk prevention,and the functional boundary of the judicial system cause the dysfunction of the dichotomous review standard of positive rights and negative rights.Procedural rights represent an important dimension of climate-related human rights.With the standardization of administrative procedures on addressing climate risks,the courts are gradually reinforcing decision-making authorities’obligation of due diligence through judicial review of risk decision-making procedures,thus indirectly guaranteeing the realization of tangible human rights.

Human Rights-based Argumentation in Climate Change Lawsuits

Climate change lawsuits represented by strategic litigation have become a new force to promote global climate governance. Among them, using the norms and theories of human rights law to present litigation claims, conduct legal reasoning, and form human rights-based argumentation has been one of the most successful strategies for climate change lawsuits. The Paris Agreement marked a major watershed for human rights-based argumentation in climate change lawsuits: Before the signing of the Agreement, human rights-based argumentation in climate change lawsuits remained in its trial stage;since the signing of the Paris Agreement, as a litigation strategy, it has become more flexible and diversified, as its relationship with climate governance is becoming increasingly complicated. The uncertainty of climate legal obligation and the process of legalization of climate targets have fostered new dimensions for human rights-based argumentation: Shifting from an accountability logic to a litigation strategy, from international law to domestic law, from holding governments accountable to holding enterprises accountable. There are micro, medium, and macro paths to clarify the human rights-based argumentation, all leading to truly integrating human rights perspectives and ideas into a nation’s specific process of climate governance and valuing and leveraging the value of human rights-based argumentation as a tool, so as to achieve the goal of climate governance.