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The Risk Of Tort Law Liability System

Posted on:2009-12-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:X W LiaoFull Text:PDF
GTID:1116360248951031Subject:Civil and Commercial Law
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This dissertation focuses on Dangerous Liability System of Tort Law, the core of the study is to convert the concept, basic theories, etc. of this doctrine, it consists of three: Preface, context and conclusion remarks.Preface. With the help of the "risk society" theory from social sciences, the author first analyzed the legitimacy of the dangerous liability system. This chapter points out a relatively evident flaw lying in the presentation of the current concept of "Technical failure", which makes crisis of developing industrial society. There are many characters of the risks of modern society as blow: Self -made uncertainty, reflexivity, equality, incalculability and globosity. In some time, the world becomes to "nothing but risk", and the paradigm of the life world shifted from "property-distribution" into "risk-distribution". But the existing tort law can't adapt itself to the development of society, because the liability of fault system turn out to be "organized irresponsibility", which be named as " institutional failure". Therefore, the principle of dangerous liability in the field of tort law is a new development. It came from the need of distribution of responsibility.Chapter 1 Determination and historical development of the dangerous liability system. The writer deals deeply with theoretical questions of the dangerous liability system from three respects as follow: the delimitation of risks or hazards, the relation between dangerous liability and it's auxiliary systems of tort law include the doctrines of no-fault liability, strict liability, consequence liability, etc. The author held the view that the concept of "dangerous liability system" is much better than the concept of "liability without fault".On the formation and development of dangerous liability, this article reviewed the process of it's evolvement, and points out: The classic dangerous liability had been existing in Roma Law.Chapter 2 The types of dangerous liability in foreign countries. The writer analyses its types in Germany, France, British and American Law of tort. And find that there are three types of the model of dangerous liability: first, there isn't a generator of regulation in civil code of Germany and France; it created by the judicial practice to meet the increasing of dangerous activities. Second, there is doctrine existing in the case law.Chapter 3 The theories of dangerous liability. The author firstly analyzed the different views in dangerous liability. In British and American tort law, dangerous liability system came from "Rylands & Fletcher Rule". Which concluded by Justice Blackburn: "We think the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape".Secondly, the writer analyzed rationality and deficiency of various theories originated from dangerous liability, such as "theory of danger control", "theory of profit", "theory of cost-effective" and "theory of social responsibility for enterprises". Based on this analysis, the author furthers the regulations and functions of dangerous liability, and pointed out. The value fundament of fault liability is "corrective justice", with the major goal of rectifying "unfairness" which caused by tortfeasors by fault, correspondingly. The dangerous 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 with in the whole regime of tort law. On the other hand, viewing corrective justice as judicial justice, which is therefore subordinated to "distributive justice".Chapter 4 Legal institutional analysis of dangerous liability system. In this chapter, the author focus on the constructer of dangerous liability includes: 1. Scope of dangerous liability; 2. Elements of dangerous liability; 3. General characteristics of dangerous liability; 4. Cause connection between the act of the tortfeasor and plaintiff's in jury; 5. The relations between dangerous liability and the auxiliary systems, i.e.: duty of care, contributory negligence, and punitive damages .Chapter 5 Legislative pattern and pattern choosing for dangerous liability in China. Through analyzing the general clauses and its functions and relation between dangerous liability and general clauses, the author held the view that a pattern of combination of general and categorized clauses should be the trend in the future. And which can be adopted by China. As to the pattern choosing for dangerous liability, the author made a comparison in terms of legislative structure and character, position and feasibility of dangerous liability in legal system by taking three drafts made by professor Lian-huixing; professor Wang-Liming and professor Yang-lixin as the study object, and put forward proposals in the dissertation for amendments. The author also stated his legal suggestion on improving the present dangerous. liability.Conclusion of the Articles, This chapter specifically discusses the importance of dangerous liability, and the author insisted that individual freedom and social security is the dual value system of modern tort law. So, dangerous liability should be the general principles of tort law.
Keywords/Search Tags:Risk society, Dangerous liability of tort law, Distributive justice
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