論「不證自明原則」暨「表見證明」於我國醫療民事訴訟之適用性

Litigation for medical malpractice is a distinctive legal action. So far there has been no clear operation guidelines on how to distribute litigants’ burden of proof so as to carry out the principle of equality of arms. With reference to actual practices in other countries, this article discusses the main ideas of ＂Res Ipsa Loquitur＂ and ＂Anscheinsbeweis＂, analyzes the elements and legal effects of the two principles, and compares the possibility of putting them into practice on medical malpractice cases. After the review and assessment of the results, three-stratum theory of Res Ipsa Loquitur is applied as the fundamental structure. Then referring to the characteristics of conducting domestic medical malpractice lawsuits, we further construct the model of distributing the burden of proof in medical malpractice in order to reasonably allocate the risks born by litigants when providing evidences. It is aimed to solve the difficulties in application of the proviso of Article 277 of Civil Procedure Code. This research found that the organizational liabilities of hospitals involved in lawsuits tend to pass the three-stratum test easily, especially the performances of exclusive control of instrumentality causing injury and absence of voluntary action on the part of plaintiff are the most outstanding. The finding of this article can serve as a paradigm of applying Res Ipsa Loquitur on medical malpractice cases.