Study On The General Provision Of Tort Law

The general provisions of tort law have an important position in the legislationand the judicial. In this paper,both the theory of legislation and interpretation,thetechnical analysis and value considerations, should be stressed. This paper presents ageneral revision to the terms of tort law proposed draft,and Interpretes the generalterms of the existing tort law as far as possible to meet the needs of our judicialpractice,on the basis of China's national conditions and legal environment. The fulltext is divided into four chapters,in addition to the introduction and conclusion.Introduction discourses the concept,the features and functions to generalterms of tort law. The general provisions of tort law is to have a high degree ofgenerality and universal applicability of legal provisions. It able to Betterly defuse thetension between codification and specific rules and the complex and ever-changingreality of social life. Specification property of the general terms is between the basicprinciples of the civil law and specific rules of tort law,and it can be regarded as thebasic principles of tort law. General Terms and Conditions constitute the basis ofspecific provisions in legislation, judicial reveal all the details and supplement applies.It provides a legitimate opportunity for judges measure of real benefits.The first chapter deals with the normative model of tort law. Rights protectionand freedom of action, weigh the formation and establishment of reasons, summed upthe major constraints on tort law norms mode selection through the analysis of threeparadigm norms of tort law model (specifically enumerated mode, the mode ofabstraction and eclectic mode) configuration of the just value and security value of thetrade-offs, legislative and judicial powers and the rule of law tradition, judicial statusquo. These prerequisite constraints determine our country can not learn from theAnglo-American tort law "specifically enumerated+jurisprudence innovation" model,but only to adopt the general terms of norms of the civil law model. The analogyapplies to civil law civil justice system is applicable to a large degree of difficulty, andthe reliability is not only applicable to a last resort, by analogy, apply the system toreplace the general provisions of the law of tort.The second chapter discusses the way of the general provisions of tort law.Legislative over-generalize judicial practice, there is no real general terms should belimited to the general fault of their own acts of tort liability, rather than general to all tort liability. In the way of the tort in general terms, the terms of the big German typedabstraction terms than France has its advantages, value judgments and technicaloperations and more in line with our national conditions, more suitable for ourreference. China's Tort Liability Act,"Article6, paragraph1, in the textualrepresentation of the abstraction model close to the French Civil Code1382. View ofthe difference by explaining the theory of rights and interests protection in thereservations to Article6, paragraph1under the conditions of existence of barriers toexplain on the general terms in the vital functions and the legislative and judicialpractice of tort law depends first of all appropriate legislation provides In generalterms, the legislative stage to solve the problem more efficient than the judicial phaseto solve the problem, modify the general terms of our tort law is indeed necessarylegislation to solve the problem is the "best way" of our country to deal with theproblem. Difficult to distinguish between legislative officials believe that the rightsand interests can not constitute our country to learn from the obstacles of the Germanmodel, China's adoption of legislative protection of rights and interests of thedifference between the German model, and then by the Supreme Court in accordancewith practical need for timely judicial interpretation of rights and interests of theunified distinction.The legislation specifically enumerated deviate from the general terms, it shouldconsider its necessity. Full of specific examples is neither possible nor necessary, andillustrative lists should help to accurately judge the referee cases."Tort Liability Act,"an enumeration of the responsibility not only create a tort liability commitment withan absolute right to request the right to the contradiction between the differentresponsibility to the contradiction between the way attributable to the principles andelements, but also implicit in the press different responsibility to the specific riskslisted in the General Terms and Conditions. General terms of specification modelrequires not only constitute a part of the requirements of Elements of responsibility,but also to deal with the responsibility to do the system and systematic requirements,or tort law still slide into the danger of specific examples of the pattern. InfringementLaw shall constitute a theory "command" element theory "and the" defense theory"to" responsibility, will defend as the "inverse problem" of the Elements, Elements isthe responsibility constitutes a positive justification defenses is the responsibilityconstitutes the opposite of deny reason, both simultaneously, the only difference isthat the burden of proof; Legislative Council shall be the responsibility constitutes a "and" responsibility "was separated into two chapters, and the" Elements "and"defenses "combined into one chapter.The third chapter deals with the specific theory of general provisions of tort law."Tort Liability Act, Article2, paragraph1, should not be interpreted as a large generalprovision; contrast, Article6, paragraph1is more suitable interpreted as general terms;6, paragraphs2and7,24,69should not be interpreted as a general provision.As specific examples of legislation and supplementary interpretative provisionsconstitute the elements of concrete's role in China's general tort little abstractgeneralizations mode referee standard uncertainty has become a prominent problem.The recommendations draw on German tort law type mode, from an academic type ofthe constituent elements of the general tort, this is our country deal with the problemof "second choice". German tort law tort type of standard that illegal standard.Independent elements of the tort liability of the illegality of China's fault, is conduciveto conflicts of interest between the precise balance of the plaintiffs rights protectionand freedom of action of the accused, a reasonable limit the discretion of the judge,also help to alleviate the embarrassment of the right to an explosion and rights conflict.To this end, the "against interest" as illegal criteria limited the scope of protectionprinciples of tort liability and negligence against absolute rights ", the relative rightsand interests only in the behavior of the defendant to comply with the violation of aprotection laws or deliberate breach of public sequence good customs "of thecondition only by the general terms of protection, thus explained on the theoryformation" against interests "(ie, illegal sex) for the responsibility constitute the coreelements, in order to" negligence against the absolute right to "," negligent violationof the protection of others of law "and" intentional violation of good morals "for thethree types of fault tort law system. Against the absolute power "is presumed to beillegal, and the" violation of the protection of the laws of others "and" willful violationof good morals,"the illegality of positive finds. Can be achieved through three termsof the type that take into account the operational and appropriate flexibility, therelative openness of the scope of protection of the law of tort, both immediate needsand future development.The fourth chapter discusses the impact of tort law in general terms of the civillaw system, reflects on the general terms of our tort law norms model from asystematic perspective,makes recommendations to the general interpretation of theprovisions. China's Contract Law "is the German model of" contract law ", and" Tort Law "isthe French model of" tort law "(literal interpretation of the General Terms), two lawson the protection of the interests in the contract there is an overlap. Responsibility forcompeting the civil law academia a Lapping of Legal Provisions, said the claims ofcompeting claims norms competing, three theories have their limitations, not enoughto solve the problems of our country the responsibility of competing, the best Thesolution is to minimize human responsibility competing. China only reasonableinterpretation of the general provisions of the law of tort, to avoid tort law protectionof the interests protected by contract law principles of tort law protect only theabsolute right.Due to the inherent relationship between the Tort Law and the Personal Right,the legislative model of tort law affects rights law legislative model. Our tort law hasstipulated that reveal all the details of the general terms, the future rights law shouldbe taken specific enumeration mode. Germany only through precedents establish thegeneral personality right system is to compensate for the lack of specific examples ofthe types of moral rights, in general terms of our tort law has sufficient room for theprotection of personality interests under the premise, do not have to provide moralrights legislation General Personal Right. Explain the theory rights law can beinterpreted as the way of the general provisions of tort law, moral rights specificallyenumerated in tort will give the type of personality rights enumerated the moststrength and protection of the most deterministic reduce the frequency of the generalprovisions of tort law to play a role, thereby helping to alleviate the difficulty of theadministration of justice, enhance the certainty of the law of tort. Personality rightslaw and tort law both protect specific personal rights, but protection of the purepersonality interests depends on the general provisions of tort law.