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Third Party Liability Of Experts

Posted on:2008-08-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:W H ZhongFull Text:PDF
GTID:1116360218461321Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
A wrong audit can cause damages to shareholders in secondary markets or to buyers of firms or shares in primary markets. This happens especially if outside investors base their decision on the audit and buy overpriced company shares. This type liability of audits for the outside investors is one of the Third Party Liabilities of Experts.The main topic of this paper firstly is restricted on the Liability of Experts to the third Party outside the Liability in the Contract. That is to say, whether should the Expert have the liability to the Parties/Party outsides the contract-Partner? Third Party Liability of Experts is liability for pure economic loss. The main point of this paper is to give normative guidelines for the problem of whether or not the victim outside the contract should be compensated for such losses. It proposes liability for disloyal and negligent behavior if a wrong Expertise caused damages which are caused in a transaction-project and if the third party has reliance on the Expertise that was made by the expert.The legal forms of Third Party Liability of experts in general differ widely across countries. Under tort law most Legal Systems restrict or even exclude liability for pure financial loss. In contract law pure economic losses are generally compensated in case of simple negligence. In some legal orders the plaintiff can base his claim either of Germany and Britain. And then through the legal practice-comparing of these two countries, give some criterions of the Institution of"Third Party Liability of Experts".In Comparison to the limited scope of German Tort Law (Deliktsrecht), German contract law has a broad scope of protecting rights and interests, which covers case groups for"Third Party Liability of Experts", which in Britain in contrast are treated under tort law, because Britain contract law is comparatively narrow. My main concern is however not only the legal form of these two countries, but also a proposal of the key criterions of two liability rules, which can do some benefit to Chinese legal construction for this Institution.But in Germany there are also many legal theories arguing the other ways outsides the contract and Tort. These theories are so positive or helpful that we should do some researches on these topics, which could give some tips to this topic.If we want to drop a more scientific solution to this institution, we should also explain the third party liability from the historic sphere. By researching on the historic evolvement of the"Third Party Liability of Experts"we could find, the institution of"Third Party Liability of Experts"is not only a new but also an old topic. But why has this constitution in these years been going into our eyesight? The idea, social, economic, political situations are all contributing to this development, what we should pay more attentions to.After the comparison of the two legal Systems, I can say, these rules can in principle be embedded in contract law, culpa in Contrahendo, tort law, Professional Liability (Berufshaftung) or altogether. But as far as the Chinese legal Construction is concerned, my opinion is that, china should reject the way of contract of contract, culpa in Contrahendo, Professional Liability, and adopt the way of Tort Law.The first chapter of this research should give some basis-Principles of the institution for"Third Party Liability of Experts. What can a man be an Expert? What is Expert Liability? What is"Third Party Liability of Experts"? What is the fundamental way in solving the"Third Party Liability of Experts"? How should man construct the basic Constructions of the Liability in the Tort Law? What are the Functions and the Characters of this Institution?The following three Chapters concern about the legal Comparision. In order to do that, I firstly explain how Britain solve this problem in tort law, what is to say, mostly through the way of Negligence of Torts(Chapter 2.). Secondly I concerntrate myself on the German Law, which through the legal form of a contract with protective consequences for third parties (Vertrag mit Schutzwirkung für Dritte) solves this problem in the scope of the Contract(Chapter 3.). But in Germany the reason in adopting the legal form of a contract with protective consequences for third parties is that, the protect scope of Germany Tort Law (Deliktsrecht) is too narrow to give the remedy for the third party's compensation. So in Germany legal theory there are many other opionions or theories for the way searching for the Remdies-Way. Chapter 4 is to give some eyesight to the other German Theories for this institution, including Obligations in the tractions (Verkehrspflichten) in Tort Law, Professional Liability, Reliance in Culpa in Contrahendo, etc.Though the Third Party Liability of Experts can be traced back to the Mensor's Liability in Roman Law and it was also gained the attentions of the usus modernus and the Legislation in A.D.19. Century and the legislators of BGB in Germany had also discussed it a lot, the institution of the Third Party Liability of Experts is only be constructed for about this 30 years. So the historic research should be paid attention to. But most importantly, in order to give the concrete explainations of this institution, should we research today's situation, including the economic, social, political, idea changes, which could explain the Institution of the Third Party Liability of Experts: from development to mature. Chapter 5. focuses on these problems.If the conclusions of the Comparative Law could be fluently incorperated into one country's legal system, the real pracise of the country's legal practices and legal orders must first be researched, which then the conclusions may be helpful for this country. The same principles is suitable to china's Legal Contruction. So chapter 6. concertrates on the Explaining and research of China's legal practices and legal orders of this institution. After these works can I drop the conclusion for the chinese Legal Contruction of Third Party Liability of Experts. China should solve this problem in Tort Law.The last chapter draws from the literature on pure financial losses and from the literature on precise and vague negligence norms as well as from the literature on the tort contract boundary. The article does however not discuss the problem of joint and several liability and the strategic problems involved. The focus is exclusively on the question, under which conditions the victim should be highly protected by contract law or get a lower level of protection under tort law. So the duty of care, the Project, the Reliance, the Fault, the Profession, the Expertise, the causation are all the key criterions to the Tort Elements in contructing the Third Party Liability of experts in Tort Law. These problems have been extensively dealt with her through the Compare and are solved here completely. Then chapter 7 is also the conclusion for the whole paper, which I give a legal Instruction to china's legislation on writing the institution of the Third Party Liability of Experts.
Keywords/Search Tags:Expert, Liability of Experts, Third Party Liability of Experts, Delicit, Negligence, Fault, Pure Economic Loss, Implicit Contract, Professional Liability, the Third Way, Social Country, Contract with Protective Consequences for Third Parties
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