The Values Of Tort Law

Tort law study is right at a critical point of time. Firstly, along with the modern social transformation, tort law finds itself in a crisis of survival,and confronted with the choice of orientation, due to the incompatibility with the needs of modern society.Secondly, various questions remain unanswered, including, as an important part of Civil Code, how the tort law is to be arranged in the future Code, in particular what kind of legal notions should be born by it, its status in the system of the Code, and how to design its internal scheme. Apparently the urgent need for tort law study goes beyond specific issues such as whether tort law should become an independent chapter, and how its general provisions should be drafted, etc. The substantial issue may be generally concluded as values of tort law, which is of great significance for both theory and practice. Examining those issues from an angle of philosophical jurisprudence, is not only because of the involvement of fundamental theoretical issues of tort law thereof, but because there is greater likelihood of predicting its future development through critical insights in light of jurisprudence, beyond the restricted views of particular branch of law, connecting the study of the branch of law with that of jurisprudence.This dissertation focuses on social values, systematic values and institutional values of tort law, with a goal of overall critically analysizing traditional tort law values, and reconstruring the values of tort law according to the need of modern society. The study of tort law values is an comprehensive understanding of the development trend of tort law, reflecting the values from the perspective of building up a harmonious society. The core of the study is to convert the negative images of tort law, and shape its modern characteristics, through positive role in promoting the development of individuals, the distributions of social resources, and protection of victims.Modern tort law, in terms of social values, holds the personalism in ethics as the moral ground, and the implications of self-activeness, self-sufficiency and self-disciplining of human, suffice to satisfy the pre-conditions for framing the boundaries of human activities. While basing equality and inter-changeableness as the groundstone of legislation of tort law, what in the mind of the legislators is to seek formal justice. Nevertheless, tort law remains passive in handling the matter"how people should treat one another". On the one hand, the tort law defines the boundary of"do no harm to others"on the passive side, each individual acting in his/her best interest and as guadian of his/her own interest, but being imposed of no duty of care for others; while on the other hand, by categorizing itself into adjudicating norms,tort law attempts to remain a neutral system. Pursuit of formal justice generates equality of opportunities, and makes tort law the outward variants for formation of social order, in the meantime that process is largely motivated by maximization of individual interest, but, absent the integrating factors demanded by the society itself, the process is thus subjected to free competition; furthermore, given its pursuit of formal justice, the tort law is destined to be indifferent to the realities of relevant subjects of laws, and it naturally follows with deep gap of standing and power of different subjects, objectively reinforcing the view of efficiency as"the strong always strong".From the perspective of legal system, tort law, as a part of obligation law, does not take a place independently in civil law system, which restrains tort law's functioning, besides, the relationship with other branches of law, usually occurs in disproportionate standings, affecting adversely the functioning of legal system as a whole. Tort law is generally deemed as rights protection law in terms of coverage, but it can't create rights of its own, which is indicative of its reliance on other right-creating laws; meanwhile rights in tort law function primarily as setting up boundaries for activities, and inattentive to the protection of victims. Rights, therefore, only enter into the purview of tort law when considering scope of protection of rights in terms of victim's damaged rights is related. Value of corrective justice is insisted in terms of regulating function of tort law. On the one hand, corrective justice is naturally affliated with fault liability doctrine, with the major goal of rectifying"unfairness"-----the damage caused by tortfeasors by fault; correspondingly, the strict liability as one resulting from special torts,is not categorized into corrective justice, but reasonable sharing of loss of unfortunate damage, and has been placed in the margin within the whole regime of tort law. On the other hand, viewing corrective justice as judicial justice, which is therefore surbordinate to distributive justice, founds a solid theoretic basis for passive functioning of tort law. Accordingly, modern tort law, is featured as systematically dependent in terms of values of system, and has not carved out exclusive scope of its own, as a consequence, the independent legal status of tort law can by no means be established.At the level of institutional values, sticking to the predominant role of fault liability rule within tort law regime, necessarily results with the mode of thinking which holds it as the fundamental principle, and creation of a multitude of legal axioms in tort law, which become obstables in the way of institutional innovation. Examples are, fault is deemed as one of the elements of assuming liabilities by tortfeasors,burden of proof should rest upon the victim, etc. all those render it reasonable to favor tortfeasors other than victims. About this institutional bias, modern tort law hasn't committed itself to meditations on individual justice to make reforms, but had a misplaced belief in the concept of inter-changeableness of subjects throught which to rectify the bias, putting it another way, attempted to cure the defects of individual justice via social justice. But actually what the notion of inter-changeableness of subjects is intended to create is a neutral setting, which is compatible with various doctrines of attribution of liabilities, and brings out blindness to other means of dispute resolution of torts. Therefore, disfavored victims have long been an institutional problem tort law tends to disregard.Accompanied with profound social reforms of modern society, social environment more risky, spaces of living varified, and social values diversified, all these call for active responses from tort law. The human are no longer held"wise and strong", but"weak and unwise", and the interpersonal connections have never been closer as nowdays, therefore the issue of how people treat one another should be solved in light of the end of social harmonious development, and the goal of tort law should be directed at the institutional care of human, and pursuance of substantive-justice-oriented social values. In terms of institution values, the independent status of tort law must be ensured, and through promotion of position of tort law, regulating functions of tort law should be brought in line with those of other relevant laws. However,the independent status of tort law needn't to be embodied by independent chapter in Civil Code justified by researching the relationship between tort law and obligation law. A substantive approach should be stuck to, in other words, the peculiar angle of observation modern tort law offers should be clarified. On the one hand, modern tort law is expected to establish an active standard as"treat one another with bona fide"regarding"how people should treat one another", leaving more space to tort law in establishing the code of conduct, and in respect of legislative techniques, scholarship should draw upon the approaches from U.K.and U.S., i.e., basing the resolutions on the duties of tortfeasors other than rights of victims, thus doing away with the dependence on other parts of civil law for lack of right creating function of modern tort law. Meanwhile, it is argued that, changes should be made to the status quo of tort law's high dependence upon legal norms, and incorportion of good faith principle should help fulfill the vision of"principle---rule combined"as regulating mechanism to be better suited to the needs society prompted. Secondly, in terms of functions of regulating, it is proposed to renew the implications of corrective justice in light of distribution of resourses, to tune the relation between corrective justice and distributive justice into co-existence, i.e., to categorize all situations where rights are damaged into corrective justice, carving out the definite and independent coverage for tort law so as to break away with the reliance on distributive justice. Since torts are inevitable occurance in life, and a necessary price paid for sustaining of society, human are not supposed to be over-blamed; nevertheless, bearing in mind that torts indisputably give rise to changes to victim's living resources, and consequently adversely affect victim's capabilities of participating in social competition, tort law in that sense, should be utilized from an angle of distribution of resourses to perceive corrective justice. As regards the institutional development, along with tort law's status beging enhanced, the task of defining the core concepts"tort"and"tort liability"turns out to be critical, which in turn is helpful to clarify the internal logic structure of tort law."Torts"didn't have a place in traditional tort law, but traditionally general torts were used to interprete torts generally. General torts and special torts should, as proposed in this dissertation, be integrated, and all acts resulting with damage should be identified as torts, thus the traditional concept of general torts and special torts will share a common platform, which manifests the significance of tort law in setting up the standard of activities. Where there is tort, there should be tort liability,and a doctrinal shift from tortfeasor-oriented to victim-oriented approach is expected to be made. The situations where no tort liability is imposed when torts are present should be exceptional, which is where doctrine of attribution of liability drives at, and a necessary room left for tolerance in new-styled inter-personal relationship.