心证客观化视阈下间接证明模型的证成与应用 ——以医疗诉讼案件为演示样本

包氷鋒,杨雅淇 원광대학교 법학연구소 2018 의생명과학과 법 Vol.20 No.-

Different from the direct relationship between direct evidence and the main facts, the process of using the indirect evidence to determine the case facts is often complicated and complicated. It is also very easy that judges mix subjective and random factors under the process of the reconstruction of factual “fragment”. How to regulate the subjective arbitrariness in the application process of the rule of thumb and logical inference, how to prove the indirectness between indirect evidences and form a complete chain of evidence, which become difficult point of trial practice. At the same time, whether it is an indirect proof or a direct proof, it is a complete proof that the judge’s conviction of the facts should be sufficient to satisfy the judge. In this regard, how to evaluate the final proof the indirect proof to determine whether the proof standard is met, and how to clearly show the proof process to the party so that it convinced the judgment is also worthy of attention. Based on this, this paper proposes a medium to achieve heart Objectification -indirect proof model. On the one hand, It is to standardize the application of the rule of thumb, clarify the final presumptive power, and to make up for the lack of application of the evidence chain and the evidence loop, thereby maximally suppressing the subjective randomness of the fact-finding and standardizing the application of the indirect proof method; On the one hand, it provides the possibility for the parties to communicate with the court in time to ensure that the parties fully exercise their proof right. The indirect proof model can be roughly divided into four types: simple evidence loop, complex evidence chain, evidence loop and comprehensive type. Based on the concept clarification of various models and the prototype display, this article demonstrates how to perform module operations based on typical medical litigation cases appearing in practice. At the same time, it is indirectly proved that the maximal utility of the model requires the surrounding system—proof subject must be specific and necessary, the indirect facts and the main facts must be related, and the type of the rule of thumb should be perfected. Only the interaction of the various systems, Indirect proof that the model can be applied correctly. 不同于直接证据与主要事实所具有直接联系,利用间接证据认定案件事实的过程往往繁琐复杂,法官对事实“碎片”的重构也极易混杂主观随意性的因素。如何规制经验法则、逻辑推论在适用过程极易出现的主观臆断性,如何证成间接证据之间具有同向性并形成了完整的证据链条,成为审判实务的难点。同时,无论是间接证明,还是直接证明,均属于完全证明,即法官对事实的确信,均应足以令法官达到确信即可。对此,如何评估该间接证明的最终推定力进而判断是否达到证明标准,又如何将证明过程清晰地展示给当事人从而使其信服判决等问题同样值得关注。 据此,本文提出了实现心证客观化的介质——间接证明模型。一方面,以期借此使得经验法则的适用规范化、最终推定力明晰化以及弥补证据链、证据环的适用缺失,从而最大程度上抑制事实认定者的主观随意性,规范间接证明方式的适用;另一方面,为当事人与法院的及时交流沟通提供可能,以保证当事人充分行使其证明权。 间接证明模型可粗略分为简单证据环、复杂证据链、证据环以及综合型四种类型。在对各种模型进行概念明晰以及原型展示的基础上,本文以实务中出现的典型医疗诉讼案例为素材演示了如何进行模块操作。同时,间接证明模型最大效用的发挥尚需周边制度——证明主题须具体与必要、间接事实与主要事实须具有关联性、经验法则的类型化构建——的完善,只有各个制度的相互配合,间接证明模型才能得以正确适用。

论医疗诉讼中的专家辅助人制度

包冰锋,杨雅淇 원광대학교 법학연구소 2017 의생명과학과 법 Vol.18 No.-

A prominent problem in medical litigation is that the patient party cannot substantively confront the medical party by the effective exercise of litigation rights because of lack of professional knowledge. Not only that, but judges who are laymen also are helpless when faced with professional problems. In this regard, we cannot expect and should not expect trial judges to be all-around talents. To give full scope to the talents and turn material resources to good account, it is the best choice meeting the economic principle that people with relevant professional knowledge participate in litigation. Accordingly, article 79 of Civil Procedure Law of the People's Republic of China, which entered into force in 2015, formally established expert assistant system at the legislative level and article 122 and article 123 of the Supreme People's Court on the Interpretation of the Civil Procedure Law of the People's Republic of China, which came into force in 2015, do further provisions. However, we have to admit that at present Chinese legislation on the expert assistant system remains at the level of principle. In the judicial practice, parties and courts have raised many questions about how to operate the system. Therefore, we should improve the expert assistant system of Chinese medical litigation from four aspects: the qualification, the scope of application, the procedure of appearing in court and the position of litigation, in order to solve the judicial predicament and meet the requirements of practice. In terms of qualification, the overall policy should be looser; In the case of the scope of application, the expert assistant system should be expanded to apply for pre-trial evidence discovery and dispute arrangement procedures, identification procedure and pre-trial mediation procedure, not limited to trial procedure; In respect of procedure pf appearing in court, law should first restrict the cases that the court does not approve the expert assistant to participate in the medical litigation, and then stipulate that the expert assistant may issue written reasoning opinions on the professional problems besides oral statements in court; As for the position of litigation, the litigation status of expert assistant is defined as litigant participant, and the corresponding rights and obligations should be undertaken. 在医疗诉讼中一个突出的问题是,患方当事人因为缺乏专业知识,无法通过有效地行使诉讼权利与医方当事人进行实质性的对抗。不仅如此,同样身为外行人的法官在面对专业问题时也束手无策。对此, 我们不能期待也不应期待审判法官是全能型人才,让具备相关专业知识的人参与到诉讼活动中来,才符合诉讼经济原则。据此,2013年生效的《中华人民共和国民事诉讼法》第79条在立法层面正式确立专家辅助人制度,并在2015年生效的《最高人民法院关于适用<关于中华人民共和国民事诉讼法>的解释》中用第122条、第123条两个条款对专家辅助人制度进一步的规定。但不得不承认,目前中国对专家辅助人制度的立法仍停留在原则性规定的层面,在司法实践中,当事人及法院对该制度如何操作产生了许多疑问。因此,我们应当从专家辅助人的资格认定、适用范围、出庭程序、诉讼地位四个方面对中国医疗诉讼中的专家辅助人制度进行完善,以求解决司法困境,适应实践的要求。在资格认定方面,整体上应当采取较为宽松的政策;在适用范围方面,应当将专家辅助人制度扩大适用于庭审前的证据开示及争点整理程序、鉴定程序以及庭前调解程序,而不局限于庭审程序;在出庭程序方面,首先应限制法院不批准专家辅助人参与医疗诉讼的情形,其次规定专家辅助人除出庭作出口头陈述之外,还可以就专业问题出具书面推理意见。在诉讼地位方面,明确专家辅助人的诉讼地位为诉讼参加人,并应承担相应的权利义务。

Investigation on the Current Situation of China's Internet Arbitration and Suggestions for its Perfection

包氷鋒,杨雅淇 한중법학회 2019 中國法硏究 Vol.39 No.-

In the present moment when the National Information Development strategy is constantly advancing, the state-dominated public resource model has gradually been transformed into a multi-subject model of public resources, social resources, market resources, etc. In the dispute resolution channel, litigation has also evolved into a mutually applicable mechanism of conciliation, mediation, arbitration and so on. In order to meet the diverse needs of the people for dispute resolution, the innovation and development of online arbitration is timely. Internet arbitration focuses on Internet business disputes and integrates the comprehensive use of electronic technology, big data, and cloud computing on the Internet platform to provide parties with convenient and efficient dispute resolution services. As a result, the “quantity” diversion of dispute cases is promoted, and the “quality” improvement of dispute resolution is realized. However, the promotion of Internet arbitration in China is not universal. It faces many obstacles, such as lack of arbitration consciousness, credit concepts and so on. The key to removing obstacles lies in the strong guarantee of law and the optimization of practical operation. Based on this, on the one hand, it is necessary to unify and perfect the overall framework of Internet arbitration through legislation, including perfecting the supporting legal system, establishing the online trust stamp system, and ensuring the service and enforcement of Internet arbitration awards. On the other hand, we need science and technology to help online platform systems and a flexible use of big data to handle case data, while standardizing the industry personnel and enhancing public awareness of arbitration. Only in this way can we effectively guarantee the effectiveness of the Internet arbitration system and promote the information development of the online arbitration institutions and the new dispute resolution mechanism.