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On The Position Of Strict Liability In Foreign Tort Law

Posted on:2008-10-27Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y X HuFull Text:PDF
GTID:1116360242478715Subject:Civil and Commercial Law
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Strict liability reflects the first need of security of human nature. It is an important and independent regime since ancient time, and the functions of which can't be replaced by fault liability. In modern society, the systemic and non-reciprocal character of risks needs the rational arrangement of strict liability in tort law to achieve the goals of compensation and prevention.The first chapter defines the concept and essence of strict liability. This part analyses the advantages and disadvantages of all kinds of relative wordings, and finds that the term of strict liability is more scientific and extensive than others. This article thinks that, as a criterion of liability fixation, strict liability does't think of the feasor's fault. It rests upon a factual test of causation that disregards proximate caused omissions.The defenses available in strict liability are strict limited.And finally,the unlawfulness characterizes is only the harm and not the activity producing it. As a category of tort liabilities, strict liability is a heterogeneous and multi-level continuum. From the angle of legal duty, there is a tension relationship between strict liability and fault liability in the system of tort law.The second chapter analyses the historical positions of strict liability in tort law. In the laws of early days of humanity, strict liability occupied the most important and overwhelming position. In Roman law, strict liability was also an important and independent regime which sustained an open development by means of legislation, edictum and creative judicial interpretation. In Germanic law, all kinds of tort liability needn't make an investigation of feasor's bad psychology but the active and damage. In the late Medieval Age, tort liability didn't think of the fault of behavior in Feudal law, Manorial law, Urban law and Mercantile law, though strict liability was replaced by fault liability in Secular law and Cannon law. It is worth noting that the position of strict liability in England is still superior. In neoteric tort law, the decisive position of strict liability was on the wane, and the doctrine of fault liability became the general or sole criterion of tort liability. After studying the history of strict liability, we can say that as long as the risks being faced with are non-reciprocal and so serious as to threaten human's life, strict liability has its irreplaceable function in the system of tort law in all the time.The third chapter makes an inquiry into the real position of strict liability in modern tort law. Analyzing comprehensively the arrangements of strict liability regime of several typical countries, we will find that strict liability had a rapid development in the respects of applying scope and generalization. But, the real position of strict liability can't be the same as that of fault liability because the criterion of strict liability has not been a principle in most countries and strict liability is often disturbed by the concept of fault liability in the process of applying. The unreasonable arrangement of strict liability has been a serious obstacle which hinders the compensation and prevention function of tort law in the modern society beset with crises and damage.The fourth chapter analyses the rationality of raising the position of modern strict liability. Starting from the character of humanity, this part inspects and improves the deserving position of strict liability from the angles of security justice, corrective justice, economic analysis and policies. In modern society, security becomes the need of the first important because of the systemic and non-reciprocal character of modern risks. Compared with fault liability, strict liability recognizes that there are vulnerable groups in legal life. Strict liability cares more about the non-reciprocal risks and man's stress on security besides giving serious thought to the conflict of needs in different people. Moreover, strict liability can achieve the goal of protecting people's rights and compensating damage through a series of concrete regimes. From the angle of unilateral precaution, strict liability is more efficient in cost and preventing the accidents compared with fault liability. From the perspective of remedying the defect of fault liability, any compensation plan can't replace strict liability to compensate damage and prevent accidents well because of their respective serious defects. In addition, the rapid development of insurance can help strict liability to extent in future well.The last chapter ponders the development of strict liability in tort law of China. As the same as other country, there is an urge need of rational tort law system which can assert functions of compensation damage and prevent accidents. In our law system, strict liability is the exception of fault liability up till now. Because of the tradition, there is little chance to break through by judicial practice. In addition, the supporting platform is so weak compared with developed countries. In order to establishing the rational position of strict liability in our future tort law, we should change the old concept of law first. And then, we should legislate rationally by referencing the experiences of other countries.
Keywords/Search Tags:Strict liability, Rational position, Analyze rationally
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