A Study On The Rules Of Fair Sharing Of Loss In Tort Law

This paper is aimed to study the Fair Share Loss Rule in tort law. The Fair Share Loss Rule refer to when both sides with no fault for causing the damage, then both parties share the loss according to the actual situation. Fair Share Loss Rule is stipulated in the tort liability law, article24, which origins from "general principles of the civil law", article132, and it is a legal rule rich in Chinese characteristics. During the implementation of the "general principles of the civil law" period, people named this legal rule as "fair liability", but after the tort liability act was made, more and more scholars named this legal system as the Fair Share Loss Rule.The Fair Share Loss Rule is roughly divided into two categories in comparative law, that is, a special tort liability and a reduced tort liability. In China, the "general principles of the civil law" article132established a fair liability system, and it emphasized that civil liability should be shared by all the no-fault party. The Supreme Court’s judicial interpretation of the system has elaborated this rule. By modification of "general principles of the civil law", the tort liability act established a Fair Share Loss Rules, and it emphasized on both the no-fault party to share the loss. Though Fair Share Loss Rule has uncertainty, ambiguity, unpredictability, and could also be abused in practice, in the social reality, it could relieve victims, balance interests, effectively ease social tensions, moreover, it accords with Chinese national condition and traditional ideas, has moral guide significance and could maintain social interests, and therefore it is still a worthy the legal rule.For the attribute of fair share the loss rules, there are three points of view. Some thinks it is a kind of imputation principle (the scholars take this point view call it fair liability), some believes that it is just the loss sharing rules and does not belong to the imputation principle, some think it belongs to the category of liability without fault. The traditional view failed to set out from the perspective of function and the civil law system. This article is based on the above thinking, putting forward that fair liability belongs to a kind of legal debt, which focus on the relief to the victims, and it is essentially different from fault liability and no-fault liability which belong to imputation methods. If in the future our country will make the civil law code which contains debt law general rules separately, then the Fair Share Loss Rules could be stipulated in the general rules of debt law.The Fair Share Loss Rules, the basic framework is based on the general terms, and supplemented by typed provisions. From the regulation of "tort liability law", article24belongs to the general terms and conditions of the Fair Share Loss Rule; but article23, the first part of the article31and article33(1) belong to typed provisions, the provisions of article87do not belong to the Fair Share Loss Rule. Since the Fair Share Loss Rule is simply stipulated in our country’s "tort liability law", it should be gradually perfect. This paper proposes that beneficiary and the offender are liable and fairly share the loss. The situation in which beneficiary should be liable includes but not limits to rescue, operator assumes the fair share of losses, emergency hedge, and other rules of beneficiary fair share of loss. The situation in which the offender is liable includes but not limits to damages in sports, campus accident, temporarily lose consciousness, etc.The common elements in the two types of Fair Share Loss Rule are both sides with no fault for causing the damage; a certain degree of victims’losses. In the situation that the offenders are liable, there should be a causal relationship between damage consequences and the act’s offenders, but in the situation of beneficiaries are liable, it does not require causal relation, but certain legal relationship between the beneficiary and a victim is required.The application of Fair Share Loss Rule needs to consider the relevant factors, and the factor has the following characteristics:first, two types should be distinguished. Whether is beneficiary’s type or offender’s type. In beneficiary’s type, the comparison of interests of both sides is the most important thing and the first priority, which include the comparison of benefits and damages in both parties, and the comparison of the degree of each side’s damage in the situation of both sides are damaged. After considering the above two factors, then consider the proportion of loss that each party takes. The factors should be taken into consideration include the two sides’economic conditions, social influence and etc. In offender’s type, the most important and priority is causal factors, in addition, economic situation, social influence and factors such as disgraceful consideration should also be considered. The Fair Share Loss Rule not only applies to the infringement of property rights cases, also applies to the infringement of personal rights cases, but should not apply to mental damage compensation, and indirect damage and pure economic loss. Fair Share Loss Rules also should set up certain exemptions. For example medical practice at present stage shall not apply Fair Share Loss Rules. Meditation should also be applied when we use Fair Share Loss Rule. If there is a real offender, the person who takes the liability should also be given subrogation right of recourse. This is not only helpful for their active participation to share the loss, but also help balance the interests of all parties.This paper uses empirical research methods. Through the analysis of44valid samples, the author finds out that fair liability in practice is widely considered as declared terms rather than the technical provisions, and occasionally it is abused. The judge is at the discretion of the applying fair share the loss rule. In addition, in practice, the case involves fair to share the loss rule is primarily personal injury case; the proportion which support for mental damages is not high. For attorney fees, the court generally includes it in the scope of loss which needs to be shared by both sides. Some courts failed to fully consider various factors to determine the reasonable allocation proportion, and often sloppy split equally as well. Verdict reasons vary but the reasoning is too simple, not thorough and comprehensive. This paper based on the above analysis, put forward some improvement Suggestions, including detailed rules of fair share the loss, strengthen the typing, constrained discretion, to prevent abuse. Clearly stipulated compensation scope generally only applies to direct losses. Court should comprehensively considerate various factors upon reasonable allocation proportion, and requires judges to rule on the ratio decidendi in details.For our country’s reality, the author puts forward the ideal relief pattern in liability insurance and accident injury insurance, and a special fund and tort law as the important supplement, plus the government relief, social welfare and social donation auxiliary means establishing a multiple-layered relief model. With the constant improvement of the social economy level and the level of development, the future rules of fair share of the loss shall gradually walk out of the private law, return to the social law standard.