Research On Exemption Reason For Tortious Liability

Civil liability is one of essential categories of civil law. The civil legal relationship follows the general order from right, obligation to liability. The legal liability is the last barrier to ensure the realization of legal right. Civil liability is divided into liability for tort and contract. The theory of tortious liability is an abundant system configuration. The study on tort liability should not limit to the principle and component. The exemption reason is very important for the system too. Our study excessively concerned on principle and component of tortious liability in the past and ignored the research for exemption reason. It is a pity for tortious liability's theory system with the exemption reason lagging behind. The perfect of exemption reason is the essential preparation for our future legislation keeping advance and maturity. The article exerts legal investigation means to enrich the system of the exemption reason. Hope to cause recognition and in-depth investigation of our civil law academe.The article is divided into five chapters. The chapterâ… reviews the history of the exemption reason for tortious liability. First, the article reviews the exemption reason in ancient law. The exemption reason has existed for four thousand of years. The Hammurabi code had the rule of force majeure. The English common law in the media century exercised the strict liability. But in the record of court, we can find cases about the status authority, self-defense and necessary as exceptions. The Roman law had formed the general rule about"casus". The exemption from liability was a basic system of the relative"poverty"civil law in ancient time of our country. Then we argued the exemption reason under the dominant time of fault liability. The exemption reason of contract and criminal law was introduced into the liability of tort by theory and practice in French. The exemption reason in French, Germany, Japanese civil law is different. Each has its special character. But the exemption reason has become an independent system of tort law. We also discuss the exemption reason in common law system. In the liability which doesn't consider the subject situation of the defendant, such as the supervisor liability in French, the dangerous liability in German, the strict liability in English and America, the exemption reason must be regulated and studied respectively, because the liability without fault is constituted by some kinds of types. The last section is the enlighten through reviewing the history of the exemption reason.The chapterâ…¡analyses the reasonable and legitimate character of the exemption matter. Firstly, the exemption reason contains the various faces of justice value of law. It embodies the corrective and distributive justice, the freedom justice, the utilitarian justice. Secondly, the exemption reason accords with the principle of efficiency and equilibrium of the economic analysis science of law. Force majeure, necessary, assumption of the risk, consent and self-defense accord with the requirement of efficiency. Comparative negligence can inspire the parties and achieve the most benefit. Thirdly, exemption reason embodies the function of conflict settled and coordination of law. The function of legal rule is to resolve the conflict of benefit. Exemption reason is the result by weighting with benefit. The exemption reason adapts to the pluralistic trend of tort law.The chapterâ…¢discusses the position of exemption reason in the course of liability decision. The first section is the exemption reason's position of fault liability. In Germany tort law, the decision of liability is a fixed course with three steps which was followed one by one. The exemption reason is in the second stage as a way to hinder the condition of illegal. In the common tort law, exemption reason is regarded highly. The development of defense and component is synchronic. In our tort law, the exemption reason is an independent system, which has its own theory and legislation. It isn't integral part of the component theory. In the whole system of tort law, the relationship between exemption reason and element is the closest within tortious liability. Exemption reason and component decide the liability together. Exemption reason does not be derived from component. The illegal act should be accepted by our tort law as an element of tort liability, because it is concerned with the right position of the exemption matter, it should not be absorbed by fault. In the second section, we think that the exemption reason has a particular important position in the liability without fault. We can use exemption reason to prove cause. The exemption reason decides the liability alone in fact.The chapterâ…£studies on the type system of exemption reason. The first section is the concept and main theories of type. Type is between nonfigurative concept and specific matter. The thought of type is important for legal theory's research. The second section is some antecedent problems before we make the exemption reason into types. It includes three questions: the belonging, the norm and the thinking way. The classification of the exemption reason must comply with the thinking of two- way of induce and deduce, the thinking of open, the thinking of relational and structural. The third section is about the types and classifications of the exemption reason. The article summarizes the types and classifications that have existed, make-ups the classifications through using the relative theory of crime law for reference and gives the author's opinion. Exemption reason types are divided into a system of ladder.The chapterâ…´is the perfect advice for legislation and provisions design of exemption reason of our future tort law in civil code. The article analyses the situation of our active law. Our active law of the exemption reason has many defects and shortcomings, which need to amend and perfect. Then, we argue what types of exemption reason we should select and give up. Assumption of the risk should be introduced into our tort law. The types have been regulated should be more particularity. In our future tort law, we should take different legislation means according to the two different liabilities, namely the liability with fault and without fault. The author devises a series of clauses of exemption reason in our future tort law and gives the explanation.