Private Law Theory

Abstract:
An issue of central importance to the medical negligence law reforms in China over the past decade is the allocation of the burden of proof between the plaintiff patient and the defendant medical care provider in medical negligence actions. From a political economy of lawmaking perspective, this article examines the evolution of the burden of proof rules, with a focus on the reversal rule developed by the judiciary. Drawing extensively on firsthand legislative materials, this article argues that the successful lobbying of the medical profession in the legislative process leading to the enactment of the 2010 Tort Liability Law explains the nonadoption of a full-blown reversal of the burden of proof rule for medical negligence actions in the law.

Xi, Chao and Yang, Lixin, The Rise and Decline of the Reversal of the Burden of Proof in China’s Medical Negligence Law: A Political Economy of Lawmaking Perspective (June 15, 2014). The China Review, Vol 12, No 2 (Autumn 2012), 33–58.

First posted 2014-06-16 18:10:26