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"fault" Death

Posted on:2004-10-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:X M HuFull Text:PDF
GTID:1116360122970041Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
This article probes into the key problems of tort law, which are principles of tort liability and elements of tort liability by comparative research between the tort laws of China and Britain. The author thinks Chinese theories about the principles and elements of tort liability are incorrect, so they must be discarded. This article establishes absolutely new theory to replace them. The author thinks the principle of tort liability is just only one that is the "reasonableness" and the theory about the elements of tort liability is the classified theory that means the elements of tort liability are changeable with the rationales of the tort liability. The author thinks there are three rationales of tort liability, which are "unreasonable action" and "acquiring benefits" and "resulting in harm". This article also points out a lot of incorrect viewpoints about the tort law of Britain among Chinese scholars and a lot of good experiences we can learn from the tort law of Britain. This article also points out the defects of tort law in the draft of civil law that was published in the end of last year and makes revisable suggestions to all these defects. This article also predicts the future of tort law. The whole article is divided into four parts and the main text of each part is as follows:Part one: Comparative research on some prerequisite problems of tort law of China and Britain. This part is divided into two chapters, the main text of each chapter is as follows:Chapter one: The definitions of tort and tort liability. In this chapter, the author compares the different viewpoints about the definitions of tort and tort liability between the Chinese scholars and British scholars . The author thinks the meaning of tort is the action that violates a duty primarily fixed by law, so the actor should bear legal liability in civil law and the meaning of tort liability is the legal liability in civil law due to the tort.Chapter two: The objects of tort liability and tort law. In this chapter, the author compares different viewpoints about the objects of tort liability and tort law between the Chinese scholars and British scholars. The author thinks the object of court to decide the tort liability is to directly balance the differentbenefits between the parties of action and indirectly balance the different benefits between the general people. Because of the reason above, the author thinks the direct objects of tort liability are to compensate the injured party and to prevent the injuries that are taking place or will take place, and the indirect objects of tort liability are to prevent the injuries that perhaps will take place. The author also thinks the legal objects of tort law is to formulate the reasonable criterions and the forms of liability to guide the court to decide the tort actions, and the realistic objects of tort law are to protect the legal rights and benefits of the action parties and to safeguard the public order.Part two: Comparative research on the problem of principle of tort liability between China and Britain. This part is divided into two chapters, the main text of each chapter is as follows:Chapter three: Comparative research on the different attitudes to the principle of tort liability between the Chinese scholars and British scholars. In this chapter, the author points out the attitudes of Chinese scholars and British scholars are absolutely different. Chinese scholars think the principle of tort liability is the most important but the British scholars think it is harm if court decides the action by single or several principles of tort liability. The author also points out some incorrect viewpoints about the tort law of Britain among Chinese scholars.Chapter four: Comparative research on every principle of tort liability between China and Britain. In this chapter, the author thinks the meanings of "fault" are completely different in China and Britain. In China, most scholars think if someone has "fault", he should bear the legal liability when his action resulted in injuries b...
Keywords/Search Tags:", fault",
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