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Evolution Of Modern Tort Law Under The Influence Of Liability Insurance

Posted on:2009-06-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:H ShaoFull Text:PDF
GTID:1116360272473368Subject:Environment and Resources Protection Law
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Tort law has a long history of development, mainly including the following three stages: tort law in ancient times, tort law in modern times and contempory tort law. Tort law at different stages was designed to meet the specific needs of that historical period and kinds of institutions were formed to embody various legal thoughts with historical characteristics. Institutions of a society are based on the social backgrounds and are bound to go through some gradual or radical changes with the development of politics, economy, culture, moral judgments, ethics and so on, so will be the tort law. In modern times, tort law develops most rapidly among the civil law field, such as the enrichment of the contents of tort law, the expansion of tort law, the deepening of tort theories, and the more and more important role tort law plays in the society.Under such conditions, the concept of modern tort law began to undergo some fundamental changes. In the past, tort law put much emphasis on rationalism while modern tort law is focused on the combination of rationalism and humanism. Modern tort law emphasizes the respect of human beings and protection of the interests of victims. It's necessary to spread the risks and losses even if the tortfeasors are not blameful because he has not intentionally or negligently caused the damage. Even though tort law has experienced constant evolutions to seek for breakthroughs, the fact is that tort law's own efforts can't help it meet the damands of a new era. Therefore, scholars begin to pay much attention to the cooperation of tort law and other institutions (such as social insurance and liability insurance), and they have made countless attempts to perfect the current legal systems.As a newly-devised institution, the justification of liability insurance was not recognized at the beginning. However, the justification of liability insurance has now been widely recognized by the insurance laws of different countries. That is to say, the policy-holders of liability insurance have insurable interests in the objects of liability insurance contracts. By means of such contracts, the policy-holders will be indemnified in case accidents happen and cause some monetary losses. The public have taken its justification for granted, and liability insurance has been regarded as a test when assessing the development levels of a country's insurance industry.There is no doubt that liability insurance has brought about some new opportunities and presented some fundamental impacts to tort law. We will be unable to understand the operation of tort law and predict its future development if we don't take liability insurance into account. What are the impacts of liability insurance on tort law? Are these impacts positive or negative? How to overcome the negative impacts? These questions seem simple but in fact they are complicated so we can only find the best solutions after carefully examining all the related factors.The impacts of liability insurance on modern tort law are comprehensive and profound, such as the impacts of liability insurance on tort law's values and functions, the impacts of liability insurance on tort law's principles of imputation (liability rules), the impacts of liability insurance on tort procedures and the impacts of liability insurance on the expansion of modern tort law (the invention or abolition of specific tort institutions). Liability insurance has greatly influenced tort law's values, such as safety, equity and justice (distributive justice and corrective justice), guiding the development direction of modern tort law's values, namely, from corrective justice to distributive justice. As far as the functions of tort law are concerned, liability insurance promotes the compensation goal while at the same time threatens the prevention goal. Without liability insurance, the establishment of strict liability and no-fault liability will not be possible. The impacts of liability insurance on tort procedures can be categorized as follows: the victims have more incentives to seek damages and they are more willing to start lawsuits; the third party (insurance company) is also involved in the procedure so the victims will change their strategies to ensure compensation. Liability insurance has been playing an important role in the expanding process of modern tort law, such as the abolition of some immunities, products liability, market share liability, D & O liability and so on. Liability insurance has greatly stimulated the development of modern tort law, which is likely to protect the interests of victims in a better way. Thus the stability of our society can be maintained and the civilization of human beings can be further promoted. With the development of liability insurance, tort law has gone through unprecedented renovations.In order to treat the above-mentioned impact in a sound way and predict the future development of modern tort law, we also need to analyze the relations between liability insurance and modern tort law. On the one hand, liability insurance is dependent on tort law; on the other hand, the crisis of modern tort law is caused by various factors, including tort law itself and some exterior factors, such as the development of liability insurance and social security systems. But the suggestion that tort law should be abolished is not based on thorough thinking and it is also against the reality of social life. The abolition of modern tort law will probably change the values of a society and cause moral hazards among the masses.It is quite important for China to make our tort law and liability insurance harmonized because of the imperfection of our social security system, the insolvency of tortfeasors, the wide existence of dangerous but socially desirable industries, and the underdevelopment of first-party insurance. China's current tort law has comprehensive contents but there are some defects worthy of notice. For example, the status of tort law has not been finally decided, the tort systems are not complete so tort law can't protect rights and interests in a comprehensive way, and the impacts of liability insurance have not been fully considered. On the other hand, China's insurance law was enacted in 1995 and revised in 2002. As a result of these revisions, our insurance law can by and large meet the development needs of insurance industry. But the legislators have not fully considered the impacts of liability insurance on tort law when making and revising the law, thus the necessary adjustments are expected to be made in the future.China's tort law and liability insurance need to develop in a harmonious way so as to ensure the sound development of our society and economy. At first we need to recognize the theoretical hindrance for the cooperation of liability insurance and tort law and then try to find out the solutions after careful reasoning. As for the making of specific institutions, what we need to do is as follows: gradually expanding our tort law and tort liability; trying to help build the ordinary people's risk awareness and encouraging them to buy first-party insurance at their own free will; requiring compulsory liability insurance in highly dangerous but socially desirable industries; recognizing the right of victims to seek remedies directly from insurance companies and the duty of insurance companies to settle and defend cases. When perfecting our tort law and insurance law, we must follow these basic rules: the evolution of tort law has to be in harmony with the availability of liability insurance and the functions of liability insurance should not be hindered by the aimless expansion of tort law; the development of liability insurance has to aim at tort law. Without tort law and tort liability, liability insurance will be like water without a source.
Keywords/Search Tags:liability insurance, tort law, impact, evolution, socialization of tort damages
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