Study On Regulating Competition And Application Of Tort Law

Tort type diversification created to adjust the law of torts normative. In the" tort liability law" before the implementation of the general principles of the civil law"," in the provisions about liability for tort in China constitute the basic law of tort rules, these rules and other special laws and regulations such as" product quality law"," regulation of medical accident"," road traffic Safety Law"," intellectual property law"," environmental protection law" together, constitute the Chinese tort law norm system. And" tort liability law" in the process of establishing the special law tort no order, so that the separate laws on tort liability provisions of tort liability law" and" inconsistent provisions, thereby causing the tort law concurrence." Tort liability law" after promulgating, how to resolve the tort law of the judicial application of the judicial practice is one of the important problems in the. This paper attempts to tort law competing types summarized, and the concurrence of tort laws applicable to propose solutions. This article contains three parts.The first part of the tort law competing general theory undertook brief analysis. In three aspects.One is the basic connotation of the concurrence of tort law norms. According to the regulations of competing content research, analysis of tort law norms competing content, put forward the concurrence of tort laws of nature, is more than two law applies to both a tort fact and produced conflicting legal phenomenon. Therefore, the so-called tort law refers to two or more of the concurrence of tort law elements coincide or cross, and make the same tort legal facts at the same time as the standardThe two discusses the normative joinder of tort law. Is law of value conflict, conflict of interest, social change, the legislative technology lag.Three is discussed about the tort law normative joinder theory. Interpretation of the theory of three theories:the coincidence of law article says, the right of claim and claim that overlap of norms.The second part of the tort law, normative joinder types are summarized. Are mainly of three types.One is the law with the law of competition. Here the more controversial is the" general principles of civil law" and" law of tort liability" relationship. According to the" constitution" provisions of the National People’s Congress has thpower to alter or revoke its Standing Committee formulates the appropriate legal, launched the" general principles of civil law" and" law of tort liability" is a superior and inferior relation. And listed the" general principles of the civil law" and" law of tort liability"," medical emergency regulations" and" tort liability law" provisions of inconsistencies.Two is the general law and special law system. According to the law, law on scope of application have unlimited division standard, infringing on the legal zoned for infringement of common law and tort special law, and that China’s tort liability law of the general part of the rules, relative to the specific provisions, belongs to tort law in general. On the special method to carry on the simple induction, and lists some tort special law such as the" road traffic safety law"," product quality law"," law of civil aircraft"," industrial injury insurance regulations" and" tort liability law" provisions are inconsistent.Three is the new code and old law concurrence. In the" tort liability law" promulgated before, a lot of tort liability provisions of the law, the tort law has many" tort liability law" provisions of inconsistencies, here listed" tort liability law" and" food safety law"," the Supreme People’s Court on the trial of cases on compensation for personal injury applicable legal interpretation" provisions of inconsistencies.The third part, discusses the concurrence of tort law standard solution. In two aspects.One is to apply the standard with current selection rules. The first:" the law is superior to the lower level law rules". Here reveals himself to the" general principles of civil law" and" law of tort liability" perceptions of relationships, since the NPC standing committee deliberations report" tort liability law" qualitative for the socialist legal system with Chinese characteristics of the support of law, and the" tort liability law" in the National People’s Congress’s legislative plan is" stages, step " development of the civil code of China is an important part of the tort liability law,"" and" general principles of civil law" should belong to the same effect order of civil law." Tort liability law" and" general principles of civil law" inconsistent provisions, do not apply to" the law is superior to inferior" rules." Tort liability law" the relevant provisions and judicial interpretations inconsistent, give priority to the application of tort liability law"". Second:" the law is superior to the old law" applicable rules. For the same level of the law, the new law prior to the enactment of the law." General principles of civil law"," product quality law" and" the relevant provisions of tort liability law" inconsistent,"" give priority to the application of tort liability law. Third:" special law is superior to the common law tort tort" rules. In the application, pay attention to the common law tort tort and special law difference is mainly reflected in the specific content, but not in the form of performance. In the special law, it should be differentiated from the general provisions general provisions and specific provisions relating to specific, and not necessarily applicable to special provisions of the law of tort. For belonging to the" tort liability law" in the general provisions general provisions, should be more in accordance with the" tort liability law" the first chapter to the third chapter of the applicable provisions of law, to belong to tort liability law specific provision, it should be more applicable to special regulations of the special law of tort.The two is to the existing norms for cleaning and interpretation. Controlled" tort liability law", previously developed against the tort liability law and the relevant judicial interpretations have a clean, always with" tort liability law" the relevant provisions contrary to repeal or modify. On the concurrence of tort law determining normative interpretation method. Namely:the semantic interpretation, interpretation of system, objective interpretation, restriction and expansion explanation. And the specific application of these interpretation method are briefly discussed.