In China, the relationship between statutory presumptions and legal fictions has always been highly controversial and perplexing. For example, Article 58 of the Tort Liability Law of China (the TLL) provides that “The medical institution shall be presumed to be at fault if damage is inflicted on patients under any of the following circumstances: (1) Violation of the provisions of laws, administrative regulations, rules, etc., relating to diagnostic and treatment practices; (2) Concealment of or refusal to provide medical records related to the dispute; and (3) Forgery, falsification or destruction of medical records.” After doing partial adjustment to the text of the aforesaid Article 58, the National People’s Congress of China (the NPC) promulgated it as Article 1222 of the Civil Code of China (the CCC).* The CCC became effective on the New Year’s Day of 2021. And the TLL was abolished and replaced simultaneously.

Although the new law (Article 1222) has already replaced the old one (Article 58), the academic disputes related to those two Articles are far from over. Specifically, there are two different interpretations of their contents. The first interpretation is “the theory of refutable presumptive fault”. This theory is held by many scholars in the academic circle. It is believed that this new Article (and its old counterpart) is about the presumption of fault of medical institutions in three situations. In the litigation, the party who is negatively affected by the said presumption should be allowed to prove that he/she/it has done nothing unlawfully to overturn the said fault presumption. For example, the Textbook on Tort Liability Law of China (edited by Prof. Wang Li Ming) holds that “when a patient suffers damage, if there is one of the circumstances specified in Article 58 of the TLL, the related medical institution should be presumed at fault, but it is not to presume that the medical institution is at fault for sure. In other words, the medical institution can prove that they are not at fault by adducing the disproving evidence.” In addition, Professor Zhou Cui also holds that view, he thinks that “the presumption here is a legal presumption (Fa Lü Tui Ding), and medical institutions should be allowed to produce the rebutting evidence to overthrow it”, that is, as long as it is a legal presumption, it is certainly allowed to be overturned. At the same time, the second interpretation is “the theory of irrefutable fault determination”. This theory was adopted by the NPC, Professor Liang Hui Xing, Professor Yang Li Xin and others. When the Constitution & Law Committee of the NPC deliberated the “Tort Liability Law (Draft)”, Mr. Hu Kang Sheng, Chairman of that Committee, pointed out that the so-called “The medical institution shall be presumed to be at fault” in Article 58 of that Draft of TLL is different from the so-called “presumed to be at fault” in paragraph 2 of Article 6 of the same Draft, but “a direct determination”. Professor Liang Hui Xing also holds the opinion that the “presumption of fault” in Article 58 is not a real presumption, but a “direct determination” made by the legislators in advance. Its legal effect is equivalent to another technical concept “be deemed/be regarded as (Shi Wei)”. In addition, Professor Yang Li Xin clearly indicated in Article 101 [the nature of presumed medical negligence] of the proposed draft of the judicial interpretation on TLL of China that: “If a medical institution is presumed to be at fault in accordance with Article 58 of the TLL, the court shall determine that the medical institution is at fault; the medical institution shall not be allowed to overturn the said presumption of fault.”

In order to solve the puzzle of whether Article 58 of the TLL (now the revised Article 1222 of the CCC) is a “refutable presumption of fault” or an “irrefutable fault determination”, we should solve some related and intertwined theoretical problems in the first place: (1) what are the connections and differences between various types of presumptions and legal fictions? (2) Can relevant litigants deny and defend legal presumptions and legal fictions? (3) Will these rebuttals and defenses affect the related burden of persuasion (Objektive Beweislast/Zheng Ming Ze Ren) and the related burden of producing evidence (Subjective Beweislast/Ju Zheng Ze Ren)?

To unravel the above mysteries, the author created the following set of unlocking tools: first, compared with legal fictions, two types of statutory presumptions (the ISP/the irrefutable statutory presumptions & the RSP/the refutable statutory presumptions) are more or less refutable. Their differences are as follows: on the one hand, the scope of refutation is different; on the other hand, the difficulty of refutation is different, too. Second, litigators are forbidden to refute the conclusive part of an applied legal fiction, but they can disprove its premise fact. By nature, that refutation is “a challenge against the lawfulness of that legal fiction’s usage”. Third, for related ultimate facts, the using of statutory presumptions will not lead to their inversed burden of persuasion. Fourth, when the principle of presumptive fault is applied, as for the issue of whether the defendant has subjective fault or not, the related burden of persuasion will be reversed to be assumed by the defendant. By comparison, in the usage of statutory presumptions, there will be no inversion of burden of persuasion. Fifth, direct denials, indirect denials and defenses can be used to rebut premise facts of the legal fiction, basic facts of two types of statutory presumptions, and presumptive facts of the refutable statutory presumptions. Sixth, when direct denials and indirect denials are launched, the evidence is the disproving evidence (Gegenbeweis). When the defenses are raised, the evidence is the proving evidence (Hauptbeweis). Seventh, the successful effect of discrediting basic facts of refutable statutory presumption: the using of that presumption lacks legitimacy, so the corresponding presumptive facts are untenable, too. Eighth, the successful effect of contradicting the presumptive facts of the refutable statutory presumption: while those presumptive facts are proved groundless, the related basic facts will be considered as confirmed continually. And finally, the successful effect of disproving basic facts of irrefutable statutory presumption: because it has been proved that the using of that presumption is lack of lawfulness, the related presumptive facts can not be sustained, either.

Based on the theoretical tools in the preceding paragraph, the author believes that the said Article in the preceding paragraph an ISP. The reasons for this assessment are as follows: first, this author agrees with Mr. Hu Kang Sheng, Chairman of the Constitution & Law Committee of the NPC, that is, “the medical institution shall be presumed to be at fault” in Article 58 of the TLL is different from the so-called “if the actor presumed to be at fault” provided by the 2nd paragraph of Article 6 of the same law. Specifically speaking, Article 58 of the original TLL (Article 1222 of the CCC) has nothing to do with the application of the principle of presumptive fault, but a typical statutory presumption. Therefore, as far as this Article is concerned, its presumptive fact (i.e. the PAASP/ the party adversely affected by an applied statutory presumption: the related medical institution has subjective fault in respect of the damage suffered by the opposite party) has nothing to do with the inversed burden of persuasion. As long as the BSP/the benefiter of an applied statutory presumption in a civil trial (the patient or the close relatives of the deceased patient) can prove the truthfulness of one of the three mutually independent basic facts (violation of the provisions of laws, administrative regulations, rules, etc., relating to diagnostic and treatment practices; concealment of or refusal to provide medical records related to the dispute; loss, forgery, falsification or illegal destruction of medical records), the presiding judge then has the duty to presume that the defendant has subjective fault in line with the law. This is essentially a kind of law application activity carried out by the judge. In other words, when the basic facts are substantiated, the “burden of persuasion for the establishment of the related presumptive facts”, which should have been borne by the BSP, has been temporarily relieved due to the direct application of relevant laws. Second, if we desire to refute the presumed fact directly (i.e. the related medical institution is presumed to have subjective fault), the assertion of the PAASP should be expressed as “the related medical institution has no subjective fault”. This author believes that the specific facts used to prove “the PAASP has no subjective fault” are limited to the scope of the three basic facts stipulated in Article 58 of the original TLL (now Article 1222 of the CCC). If this author’s point of view is accurate, the target of the rebuttal of the PAASP is not the presumed facts, but the relevant basic facts. In the light of the aforesaid theoretical analyses, the refutation of those basic facts is a denial. It can be either a direct denial or an indirect denial. Under that situation, the BSP assumes the burden of persuasion for the verification of the basic facts, while the PAASP only bears the burden of producing evidence for their disproof. Of course, the PAASP may also launch defense to discredit those three mutually independent basic facts. In this case, the PAASP bears the burden of persuasion for that alleged defense, and the corresponding proof presented by the refuter is the proving evidence. Third, the effect of successful refutation against the basic facts of an ISP is that because the application of that statutory presumption has been proved to be unlawful, the relevant presumed facts will also become untenable.

In view of the above three grounds, as far as the statutory presumption in Article 58 of the original TLL (Article 1222 of the CCC) is concerned, objectively, it is impossible for the PAASP to disprove the related presumptive facts. From this point of view, “the theory of irrefutable fault determination” is reasonable. At the same time, the PAASP does have the right and chance to refute the basic facts. From this point of view, it can be argued that “the theory of refutable presumptive fault” is not totally unreasonable. However, it should be noted that the rebuttal against the basic facts is not a real refutation, but “a challenge against the lawfulness of that statutory presumption’s usage”. Therefore, on the whole, this author’s theory is based on “the theory of irrefutable fault determination”, and absorbs certain reasonable elements of “the theory of refutable presumptive fault” at the same time.

Last but not least, by making use of the above-mentioned set of identifying methods, 28 statutory presumptions and 30 legal fictions are identified in the CCC.