ZHAO+Lei　YAN+Gui-ping

【Abstract】With the development of the theory of identification“duality”in medical tort lawsuit，the burden distribution system of proof of medical tort also gradually developed.So-called links are universal，state institutions are often “one change makes all change”.In medical tort cases，the judges replace the trial results with expert opinion let alone tend to rely on expert opinion to determine the truth while he can't verify the case facts. The another thing，after the newly revised Civil Procedure Law revised in 2012，it defined the parties of basic rights or interests protected in the case of the cross-examination of medical damage expert opinion.But due to patient lack of medical expertise and expert refuse to appear in court，no right of cross examination could happen.A part of the medical cases are used in expert auxiliary system to solve the above difficulties，but procedures of expert assistant system have not been unified.Many problems and doubts are still in implementation for judges，lawyers，parties concerned.Analyzing the disadvantages of the present the appraisal system of medical lawsuits and working on the improvement of expert assistant system，and expect to the analysis and explanation for the medical tort lawsuit contribute to subsequent researchers and juridical practice.

【Key words】Judicial verification；Distribution of the burden of proof；Medical tort

1 The Evolution of Medical Damage Identification System in China

In the "Code of Criminal Procedure" Article 42，"Civil Procedure Law" Article 63，"Administrative Procedure Law" Article 31 are provided that Identification of opinions as a professional evidence.Professional identification advice is beneficial to the investigating organs to identify the case and help judiciaries to make judgments.While related to medical damage compensation cases，the judge always according to medical identification of the facts of the case to decide.It is difficult to determine the authenticity of the facts due to its responsibility to identify and division has a strong professional，just entrust medical damage identification agencies.

1.1 Identification of medical malpractice and identification of medical damage liability

Before 1987，there was no medical identification in our practice because of the legal system not perfect，people always through consultation and remedial？methods to resolve the occurrence of medical disputes. “Measures for the handling of medical accidents” cleared the concept of medical malpractice，grade，and establish the medical accident identification system.The burden of proof of this stage of medical tort cases take sides with the patient，but the patient difficult to obtain self-defense interests in the identification process because of the lack of medical knowledge，it is difficult to bring about the fair.In 2002，the Supreme People's Court promulgated the provisions of evidence.The State Council promulgated the Measures for Handling Medical Malpractice，which was approved by the relevant medical association of the court for the identification of medical malpractice.For medical malpractice of the medical compensation cases caused by the need for judicial identification，the court under the"People Court external commissioned by the judicial management requirements"commissioned by the relevant judicial identification agencies to identify the formation of medical malpractice identification and medical damage identification coexistence of the two-track system. There is no order for two kinds of identification，one party put forward the identification of medical disputes，the general situation of the first medical accident identification.If the identification does not constitute a medical malpractice， the patient will apply for the identification by the forensic department whether the identification of medical malpractice. It does not apply to the distribution of medical tort liability if the identification of medical malpractice.Medical Association will be part of the health administrative departments，there will be intervention in the medical identification of the embarrassing situation，the identification of opinions is difficult to ensure justice；the contrary，forensic institutions are conducive to ensuring the evaluation of objectivity and neutrality，but mainly based on laws，regulations，The identification of medical disputes， the lack of professionalism.

After the implementation of the Tort Liability Act，in accordance with Article 3 of the Circular on the Application of Tort Liability Law，the medical damage identification should be conducted in accordance with the Decision of the Standing Committee of the National People's Congress on the Administration of Forensic Expertise，the entrustment，evaluation and auction of the Supreme People' s Court，etc.management regulations"and the provisions of the national sector organization identification. Ministry of Health in 2010，"on the implementation of the the relevant issues of the notice，"provides that the Medical Association may refer to the"medical malpractice technical appraisal Interim Measures" according to the organization of medical damage liability technical appraisal.This shows that medical identification damage dual system still exist.

1.2 Identification of medical damage transition

Prior to the implementation of the Law on Tort Liability，there were cases where medical malpractice was identified before medical malpractice，and there was no medical accident.After the implementation of the Tort Liability Law，the problem of the duality of medical liability is lagging behind，and the medical malpractice is not the inevitable requirement of medical damage infringement.In 2015，the Judicial Appraisal Authority of the Ministry of Justice has organized 28 technical specifications for forensic science.In the future，medical damage identification will focus on determining whether there is a fault in medical practice or not.The causal relationship between medical behavior and damage， and the corresponding degree of responsibility；Whether the medical institution is obliged to inform it；Whether the medical institutions in violation of medical standards；Damage to the degree of disability and other specialized issues.On December 24，2015，the Ministry of Justice issued the revised General Rules for Forensic Expertise （hereinafter referred to as"General Provisions"），May 1，2016 from the implementation of the"General"10 new，mainly on the identification process，identification of anti-error mechanism，identification of instruments， Cross-examination，identifier testified，appraiser avoidance to ensure the identification process and opinions of the legitimate and impartial.

In respect of the change in the application for medical damage identification obligations，"Evidence Provisions" Article 25 provides that the application for identification is the right of the parties，from the point of view of the burden of proof，the application of identification is the parties to prove their own claims of the obligations[1]，Therefore，the start of the medical damage identification is applied by the party responsible for the burden of proof，and the starting right of the medical damage identification is transferred with the change of the burden of proof. After the implementation of the Tort Liability Act， the principle of fault liability is reflected in the burden of proof，the burden of proof of the patient has a fault，the burden of proof is reflected in the identification of medical damage by the patient to apply for medical damage identification.Article 58 of the Act provides that the case is an exception， need medical institutions do not exist in the diagnosis and treatment of fault is responsible for proof or application for identification，otherwise presumed that there is a fault in the medical institution.In general，in the case of medical damages，should be applied for identification of patients， the necessary medical records submitted by the two sides together，this is based on the full sense of the burden of proof in the sense of conduct and the burden of proof of the parties.

Because the parties to the ability to prove far from each other， proof force with the judge's heart test changes in the transfer between the parties，the attribution of the burden of proof is not equal to the obligation to provide evidence in the case.

In addition，the judge should take the initiative to explain the parties to apply，for the complexity of the professional knowledge of medical issues that do not pass medical evaluation cannot make legal judgments. If the case is necessary to identify，both doctors and patients refused to apply，Article 76 of the Civil Procedure Law gives the people's court the right to investigate by authority，launch the medical identification procedures.According to the specific circumstances，the two sides in proportion should pay the appraisal fee.The main part of the application for medical identification does not affect the responsibility that the doctor and patient should jointly cooperate with.

After the implementation of the new Civil Procedure Law，"Expert conclusion" is now called "expert opinion".This opinion is not the only evidence，in practice，not all cases require medical damage identification， the parties also can provide conclusive evidence sufficient to complete the relevant burden of proof.Application of medical identification is a sense of behavior in the burden of proof，but a proof of behavior，medical identification is not the case of the parties benefit，which is no causal relationship.Therefore，the judge can not be aware of the fact，give the one party a judgment of losing because they refuses to apply for medical identification，apparently damaged the substantive justice.Only if the situation lack of evidence，it cannot be made specifically identified，the truth is unknown.A party for refusing to identify with the application or not， resulting in medical appraisal institutions cannot give expert opinion， to judge the party bear the consequences of the failure of proof.

2 The Malpractice of Medical Identification System at Present Stage

In our country at this stage of judicial practice，Judges with medical advice on the referee has reached a consensus，but there are still problems related to the problems，such as the status of forensic identification in medical damage；the qualification of experts in forensic experts， the scope of the identification of the content；how does the judge evaluate and correctly use the identification question？In our judicial identification procedures，some judges on the medical identification of excessive views from the blind.

According to the data released by the Ministry of Justice website， Beijing has been handling more than 20 million cases of forensic cases in the past five years，and more than 95% of the opinions have been issued. Anhui Province，the average rate of forensic recognition has reached 99% to the Supreme People's Court，for example，medical tort cases in the recognition of the acceptance rate of 90%.

Some of the experts identified the subjective fault of the evaluation elements，not only violated the forensic legal principles，beyond the fact that the right to judge，but also on behalf of the exercise of discretionary power of judges.Authorize experts identify the subjective fault of the medical staff leading to the phenomenon of the abuse of fault judgment criteria in medical disputes，taking the examination for reference， unauthorized distribution of burden of proof.

On the other hand，F(xiàn)orensic Medicine and identify their drawbacks affecting the stability of identification，the losing party often require secondary identification，the practice of judges based on the limitations of expertise，prefer the last expert opinion， expert opinion which makes it difficult admissible.

3 Perfection of the Contemporary medical identification system

First，judges and judicial expert should carry out their duties， judicial expert appraisal medical facts，"to the standard medical norms and rules of thumb judges involved in medical practice，" judges the law applicable，the actual situation of comprehensive medical institutions and medical personnel were fault identification.

Secondly，for the abuse of fault evaluation criteria，according to Article 57 of the Law on Tort Liability， Article 29 of the Beijing Guidance Opinion stipulates that，"Medical staff should pay attention to obligations should include the time，the region，the qualifications of medical personnel and the qualifications of medical institutions and other elements of the comprehensive level.The abstract criteria are the professional，regional and emergency factors of medical standards and medical behavior.[3]The first point is to consider the medical level of medical personnel，medical behavior must follow the professional requirements of medical treatment activities，although the human body there is personality，medical behavior there is a high risk，need to rely on new drug trials and in vivo experiments to be developed，But whether it is already mature or unknown areas，doctors should be responsible for the industry generally recognized prudential obligations， the standard must be objective and stable standards.The second point is that in the case of emergency medical staff difficult to fulfill the duty of care，medical staff can ease the duty of attention，save is the most important premise.The third point is to consider the different regions，affected the local economy， policy，various parts of the medical technology standards are not all the same，it is applied the same strict specific criteria is certainly unfair unreasonable，it should be in the same area or similar areas medical professional standards to be measured.

Finally，in view of the admissibility of the opinions，on the one hand， build a library of expert responsibility to make up for the identification of personnel in the identification of experience and operational capacity deficiencies.Firstly，identify the staff should have a high medical professional ability.Secondly，the identification of medical damage should be based on objective facts to give identification，to strengthen the identification process of supervision and restraint.Thirdly，it is desirable to have a benefit-related medical damage expert to avoid the law.Medical infringement litigation in the identification of reasonable or not， depending on whether the medical science argument as a standard， rather than to identify the authority of the experts as the standard.

At present，Japan has established a number of medical litigation special court，has a group of medical professional background of the judges and lawyers，Germany has also set up a special trial of medical tort cases， the establishment of medical identification system and process， to reduce the identification of medical experts in the judges，lawyers，experts， doctors and patients of the mutual coordination played a crucial role.[4]On the other hand，improve the judicial error correction mechanism，not only strictly review the qualifications of qualified personnel，but also to strengthen the identification procedures and identification of supervision." Evidence Provisions" provides that the expert appears in court to accept the question.But in practice，the experts rarely appear in court，the national court system civil and commercial cases in the identification of people attendance rate remained at 4% to 5%，The medical association implements a collective collegiate system，which makes it difficult（下轉(zhuǎn)第284頁） （上接第265頁）for the expert to appear in court，so that the judge can only review the opinions in written form.

On May 1，2016 implementation of the"General Principles of Forensic Program，" also made it clear that the identification of people to testify， Chapter Five separate"judicial expert testimony" clearly Forensic must strictly abide by，not violate the proceedings for any reason and Court rules.Identification of the expert issued by the identification of evidence as evidence，if not carefully reviewed and judged，to recognize its ability to evidence and proof， how to achieve judicial authority.

In the case of medical disputes， the specific problems involved in the identification of opinions are often able to determine the success or failure of the litigation，the expert does not appear in court，the judge cannot investigate and inquire about the scientific qualification of the appraiser's qualification and the opinions of the appraisal.

From the point of view of evidence， the identification of evidence as evidence，to improve the credibility of the identification of opinions，only after cross-examination of the two sides，and after the judge according to the rules of the review and judge，through the litigation in the process of cross-examination of the other side of the expert witness to complete the Evidence of the admissibility of the review and judgment，rather than through the judge's authority to examine the evidence，which is worthy of our reference and to improve.

【References】

[1]Liu Lanqiu，Zhao Ran Empirical Research on medical litigation identification system-based on analysis of judicial documents in three courts in Beijing[J]. evidence and science，2015，23（2）：230.

[2]Wang Yue，Deng Hong foreign medical law studies[M].Beijing：Law Press，2011： 135.

[3]Huang Feng，Italian Code of Criminal Procedure[M].Beijing： China University of Political Science Press，1994：78.

[責(zé)任編輯：田吉捷]