| Along with China's economic and social development, various vehicles for transportation, particularly railway transportation, have provided highly efficient services for travelling. However, they have also brought about a considerable amount of damages, losses and indemnifications. Therefore, there has been a lot of effort trying to formulate the principles of liability fixation through scientific means, optimize the resources, positively encourage railway transportation participants' conduct, effectively control the cost of prevention, increase the efficiency of prevention, decrease railway transportation loss and damage as well as the consequential disputes and lawsuits.There has never been a time when the jurisprudential circle stopped researching and debating over these emerging conflicts in social lives. However, major controversies over certain issues remain. The author of this paper considers the legal system as an incentive mechanism through the viewpoint of Economics of Law. It is feasible to internalize the external cost of individuals' conduct and lead individuals to choose the best conduct options by allocating responsibilities in a reasonable way and formulating the principles and regulations of indemnification scientifically. Moreover, it is necessary for amending the railway passenger transportation carrier's responsibility system--which centers around the principles of strict liability fixation-- in a scientific,just way, so that social justice and social benefits will be protected with balance, and references for amending and perfecting constitutions will be available as well. This serves the purpose of this paper.More specifically, this paper mainly focuses on the following areas:(1) Introduce the problems: introduce the problems and challenges which emerge in applying the current principles of liability fixation of railway passenger transportation. Through the analysis of principles of liability fixation, which is the pivot in railway passenger transportation carrier's responsibility,it is realized that strict liability's legislation,its scope of application and its conditions of immunity lie not only at the heart of theoretical research, but also for litigation disputes. Based on quantitative analysis on the above-mentioned issues, built on the current legislation groundwork, the author of this paper proposes methods for analyzing and solving problems, and provides scientific, objective and quantitative basis and criteria for amending and perfecting legislation.(2) Starting from the history of Economics of Law, the author of this paper re-states the goal and the value for Economics of Law: to build a binary structure with a balance between justice and efficiency, to reveal the origin and the legitimacy of applying Economics of Law theories to analyze the principles of liability fixation, to propose using the methodology of individualism in economics, to apply the cost—benefit theory and balanced analysis on paradigm research,to analyze the mutual relationship between a legitimate principle in liability fixation and social conducts optimization, to re-emphasize that from the viewpoint of Economics of Law, incentive is the key issue in a given society.(3 ) Accidents in railway passenger transportation are inevitable. Carrier's responsibility comes in many folds with ongoing disputes on judicial level. However,principle of liability fixation is lacking from legislation. Looking through the lens of Economics of Law, this paper introduces indexes of benefits, discusses efficiency advantages and loss for strict liability itself, proposes the evaluation standards for loss prevention and minimization, reducing the overall social cost and taking into consideration of both justice and efficiency. Moreover, it also tries to use the binary matrix of benefits and accident analysis model, and concludes that strict liability is more efficient than fault liability under the circumstance of unilateral prevention. Thus, the proposal is made that legislation should clearly identify the principles of strict liability fixation in high risk responsibility for railway passenger transportation.(4) The basis for strict liability fixation is the Liability for injury caused by the highly dangerous operations. However, legislation lacks a clear scope of application for this liability. This paper starts from the controversies over the scope of application for current principles for liability fixation, then proposes that by benefit analysis,reasonable doers' expected conducts could be predicted through balance analysis and the incentive function of a system should be optimized. It definitely defines that unilateral accidents fall within scope of application for strict liability, because it is incentive for the participating parties. It also proposes that unilateral accidents should fall into the scope of application for strict liability in railway passenger transportation.(5 ) This part of the paper focuses on the conditions of immunity of strict liability.It reviews current regulations on the conditions of immunity of strict liability, discusses the potential problems if internalization cost is the only resource for incentive, proposes the concept of victim' s reasonable attention level by benefit analysis and balance analysis, discusses the necessity and importance of treating the principles of strict liability fixation with shared negligence defense as the principle of liability fixation in railway passenger transportation. Furthermore, by using The Hand Formula, marginal utility analysis and cost-benefit analysis, it discusses how to define victim' s reasonable attention level, how to effectively stimulate participating parties in transportation, how to reach a balance state with optimized policies through reasonable attention level.Finally, it proposes that when railway passenger transportation carriers carry out the high risk liabilities, the principle of shared negligence defense should be applied to modify strict liability,and treat passengers' deliberate intention and irresistible factors as conditions of immunity for carriers. Suggestions for legislation are given as well.The research innovation and academic contribution of this paper are mainly embodied in the following three aspects:(1) Accidents in railway passenger transportation are inevitable. Carrier's responsibility comes in many folds with ongoing disputes on judicial level. However,principle of liability fixation is lacking from legislation. This paper analyzes the importance and necessity of establishing the principle of strict fixation liability of railway passenger transport carrier by using the method of law and economics analysis,and defines the unilateral accident as the dangerous liability of railway passenger transport, and puts forward that legislation should be established in this field Legislative recommendations on the principle of strict liability.(2) The basis for strict liability fixation is the Liability for injury caused by the highly dangerous operations. However, legislation lacks a clear scope of application for this liability. This paper puts forward the concept of the best accident prevention party from the angle of rationally predicting the behavior of rational actors by means of equilibrium analysis by using the method of law and economics analysis from the point of view of divergence and disagreement about the scope of application of the existing imputation principle. The method of constructing the social welfare function is used to verify the unilateral accident as the incentive function of the strict liability scope, and finally put forward the legislative proposal that the unilateral accident is determined as the scope of strict liability.(3) The article first uses the method of law and economics to analyze the concept of reasonable level of attention from the perspective of benefit analysis and equilibrium analysis, and finally demonstrates the principle of strict liability imputation with common negligence defense as railway passenger transport The importance and necessity of the carrier's attribution principle, and how to establish the reasonable level of attention of the victim, so as to effectively encourage the participants and achieve the optimal strategy combination.The final conclusion of this paper is that, under the current circumstances for carrying out high risk responsibility in railway passenger transportation, legislation should clearly identify the principles of strict liability fixation, clearly define that unilateral prevention falls into the scope of application for strict liability, modify the strict liability by using the principle of shared negligence defense and treat passengers'deliberate intention and irresistible factors as conditions of immunity for carriers. In this way, legislation could promote social justice,protect passengers' right, realize the optimization of social efficiency and safeguard the order and the development of railway transportation. |
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