| Logical structure and main contentThis thesis contains the introduction, five chapters and conclusion.The introduction interprets the current situations, meanings, research methods, innovation and inadequacy.The first chapter is the composition of the strict liability. This chapter discusses the concept , affirmative defenses and the theoretical basis.It is necessary to define the relationships of the strict liability, absolute liability and liability with fault.This paper holds that strict liability is different from the absolute liability. In American tort law, strict liability contains the fault, but the absolute liability does not contain the fault. In essence, liability without fault is equal to the strict liability. But it is accurate to take the strict liability same as the liability without fault.In actual fact, strict liability also attach significance to the fault. Strict liability have to take the foreseeability and unlawful cause into the consideration. The causes as fellow: the first factor is the traditional legal culture; the second is the function of the strict liability; the third is the concept of the fault. Hence, this paper thinks that it is no strict liability without fault in American laws and academia. According to the tort laws, strict liability can be defined as that which is stricter that fault liability. Infringer can defense for the fault which may become the just cause of exemption from liability. It is inappropriate to take the strict liability as no fault, and strict liability is associated with fault. So, basing on the precedents, the tort laws do not have the strict system which is a liberal problem. According to the prevailing theories, this paper considers that the strict liability contains the torts caused by animals, product defects, hazardous behaviors,workers compensation and employers’vicarious liability.The constitutive requirements of strict liability are the causation and harm. Injury, harm and physical harm comprise the harm of the tort laws. This distinction is made according to the injunction and objects. Where the infringers are in group, it is have to distinguish the subdivisible harm and unsubdivisible harm. Which harm belongs to the legal harm? The harm must be objective and relievable. The victim has to demonstrate the existence of the harm, the extent of the harm and the cause. But there is a harm presumption in tort laws. It is hard to prove the causation of the strict liability. The different types and legal policy lead to the different prediction of the strict liability. The direct result theory doesn’t deem the intervening factors as the proof of the causation, which is inappropriate. The theory of risk is the result of the balance of the benefits, so it is the flexible tool to interpret the causation of the strict liability.Defenses can prevent the establishment of the tort behaviour which is the behaviour of the defendants.The effects of defenses in legislation and judiciary are not equal to defenses of general torts, including the blown of the causation, risk of plaintiff, fault of plaintiff and the result of the performance of the public duty of defendant.The strict liability also has the diverse purposes and value basises. The first is the legal justice which is the consequence of the concept of justice from the view of the cause of the strict liability. The second is the outcome of the political policy. The third is the change from the personal standard to the social standard. The fourth is the theory of prevention , deterrent and risk.The fifth is the legitimate interpretation in economics which is effective in remedy and prevention.It is should be observed that the interpretation or basis of strict liability is discordant in academia and judiciary. It is held that the legitimate basis of the strict liability is the balance of the benefits of others and social public welfare. The other interpretations are the application of the pragmatism and further demonstration of the result.The second section, the early trespass litigation: embodying the ideology of the classic strict Liability The Britain and American old tort laws adopted the writ litigation model, which provided the relief for plaintiff only when the conditions prescribed by the writ were met. The old tort law, in fact, was character of the absolute liability. The absolute liability was connected with the consequence liability. This made bearing the responsibility on the basis of the damage. Someone thought that the term of absolute liability didn’t probably exist in the early common law .but the inference of the legal precedent was surly the application of the philosophy of the strict liability .that is to say, as long as direct damage must take on the liability ,regardless of his intention or negligence .But, on one hand, if take legal liability without fault judge, that is absolute liability rather than strict liability in the early time. once you infringed other people’s rights, you must take responsibility in response, this can be regarded as a certain consequence as“Homomorphism revenge”be civilized on the other hand, the scope of infringement lawsuit and indirect infringement lawsuit, two kinds of lawsuit of Britain and America tort law which is ?considered to be strict liability law at the very beginning, are far wider than today’s strict liability In common law, lawsuit of indirect infringement is a lawsuit which provides a remedy for damage caused by illegal behavior indirectly. At this time, the applicable scope of so called“strict liability”is considerable broad, it almost covers all kinds of damage, and this is different from modern law. In modern law ,the applicable scope of strict liability is limited hence, there is no concept of strict liability at all in early days, the so called strict liability is a remedy for all infringement, it is a relief based on infringement result, take the responsibility is absolute to infringement(if this infringement is relievable) from the concept, strict liability and fault liability are relative, Black’s Law Dictionary call it strict liability, the other side is fault liability。If there is no fault liability, it’s hard to imagine the appearance of strict liability concept and idea。while early writs system did not take fault is absolute liability in connect with the old and simple law concept: where there is a damage there is a relief into consideration The reason for being held liable regardless of fault in the early Anglo-American tort law is in the absence of the concept of negligence, which actually constitutes the institution of absolute liability, not that of strict liability in comparison to negligence liability. When the concept of fault is imported into tort law, tort liability was transformed to negligence liability from absolute liability, which wiped out the pervert of strict liability. Negligence didn’t make a lot difference in tort liability in earlier“trespass”viewed from framework thereof, for negligence not being the essence of absolute liability; that is, absolute liability has nothing with negligence. On the contrary strict liability has something with negligence. Neglecting negligence in strict liability institution is relative, not absolute. On the other hand, although this writ institution cannot be recognized as what we call strict liability today for its not considering negligence, it is similar to strict liability from the perspective of legal history, which seemingly can be deemed to lay a foundation for the development of strict liability, thus we can properly say that it is based on the writ institution without considering negligence in the early stage that scholars of Anglo-American call it strict liability of classic times. The third chapter --the strict liability under the fault liability’s period Those scholars like Green, Holmes and so on, insisted that the tort law as an independent subject should have its own standard of liability, in the later times of nineteen century, but those infringement cases in the judicial practice had existed for thousand years without this standard. For the scholars’view, it was unacceptable that there was a system of jurisprudence which was lack of a uniform liability standard. They also argued that as long as we needed the Tort Law to be an independent subject, we should develop a union standard of liability on the basis of the core theory about the infringement act. This standard was being sure to the fault liability. For one thing, it was reflected to the demands from those new-developed countries which were procuring company and developing their industries; for the other, it was also reflected with the special cultural environment in the later times of nineteen century, the conceptualism and the tendency of the institutions secularization and the ethics of justice which was implicated in the fault liability were the key powers which to make the fault liability as the main principle.In the judicial practice, the principle of fault liability was focus on the following four elements: the system of writs were abandoned, the contributory negligent which was reflected to the principle of fault liability went to extremes ,the vicarious liability reflected the strict liability was restricted to put into use, and the assumption of risk were exist. In the early of the 20th century, the principle of fault liability had been already occupied the U.S. Tort Law, the spirits of the strict liability which reflected to the archaic system of writs were going to be thinner.However, although the principle of fault liability was generally popular in academia circles, but the strict liability didn’t wither away, it kept its own effects and kept in the trance in those areas, such as high dangerous conduct, the vicarious liability, and the occupational injury compensation. In the area of the high-risk behavior, although the Orvis’s rule committed generous punishments from the academia circles, even the United States Courts chose to ignorance it, but those state courts thought it reasonable definitely or implicitly。In the effect of those laws of the Europe industrial countries, including all the legislations from United States and all the states’were always encouraging making the law of the strict liability of the occupational injury compensation as the most important rescue of satisfy to the needs of the backgrounds. Although defended by the conservative courts, the employees’damage act was passed by most of courts in the late of 1910s, so the strict liability that the employ should be hold in the injury accident to the employees was estate.The reasons that the strict liability could be exist in the period of the fault liability are: for one thing, those industrial events which happened in the crowed cities make high risks, then the general public are forced to take the huge losses, only the strict liability could defend the growing events; for the other, the economies of united states has been in a fast-track. At the same time, the change of the political’strictures strictly make the change of the legal systems. The strict reason why the strict liability the more frequently the accidents happened, the less payments had been paid.Despite of the elements of the economy and the politics, the less streaky of the fault liability steps improved the developments of the strict liability. The court’s on description of the meanings of“fault”、directly cause the exhausting suits, too much more appeals, They are beginning boring with the principle of the fault liability which was benefit to them at first, and turned to support the strict liability which main decree the argues.The forth chapter, the prosperity of strict liability. The prosperity of strict liability that is one of the most important events in the process of the development of tort law of America .The process of development of strict liability can be divided into two phrases .The first phrase is between around 1920th and the period of worldⅡ, the second phrase is between the end of worldⅡand the late of 1980th .It is the realistic law and business-liability theory that promote the development of strict liability of the two phrases.About 1920th concept law’s doctrinarism and absolutism were criticized widely in academic ,whose influence is gradual .The features of the splendid movement of realism law are realism、ant-universalism、objectivism and experimentalism. Being influenced by realism thought, in academic called for abandoning the core position of the ethics in tort liability, and balance public policy between relation interests should be regarded as the foundation of default and causation .Tort law judicial should be regarded as the one part of“social project”. During 1930th the interest balance theory which is more thorough than relation negligence theory was the agreement in academic. The ethics in traditional negligence theory has declined further. On the guide of negligence theory, strict liability was picked out from the exception of default liability in the tort law works, strict liability has been regarded as the subsistent liability. Relation negligence theories that broaden the extension of applying strict liability laid stable foundation for prosperity of the strict liability.On account of the great inertia in traditional default liability,“amphibious character”is represented when the realism law thought is carried out in judicial practical. On the one hand,“default”and“law causation”etc. former domain present in the judgments. On the other hand, social relationship and interest balance are adopted in former domain, which is the decisive matter in whether party should burden liability or not.Due to metaphysical content is gotten rid of, in some creative cases, a lot traditional principles relating with false liability are without vitality, the imperceptible changes in judicial practical calls for the creativeness in academic Yang Smith The entire prosperity of strict liability has begun after worldⅡ,enterprises-liability theory’s revival is the direct impulse。Enterprises -liability theory’s core thought is the internalizing cost and sharing lost, which absorbs the newest achievements from economic and management sciences, and overcomes the empty disadvantage of relation default theory. In the middle of 1910, Jeremiah Smith foremost introduced enterprises-liability thinking from“reasonable management movement”during he analyzed strict liability of labor compensate. Ensuing, Young B. Smith broadened the extension of applying business-liability was explained as employer substitution liability, moreover, and demonstrated the function of sharing lost. Till now, the framework of early business-liability theory has formed.Owing to realism law is discordant with general comprehensive theory, early enterprises-liability theory has not been deepen and systemized After worldⅡ,the tendency of extreme anti-concept of realism law has been corrected ,at the same time , Government intervention principle has been developing in USA overall, business-liability has revival led overall, formed the temporary enterprises-liability theory finally。Pulls brace hold that because of realizing internalizing cost and sharing lost strict liability are with three advantages: the first distance is to save the cost of lawsuit, the second distance is to obtain the optimum effect of avoiding lost: the third distance is accordance with the justice of distributing, compared with false liability. The temporary enterprises-liability theory stimulates establishing uniform juristic foundation of strict liability in various domain, which promotes strict liability is the exception of false liability no longer but the general principle that can content with false liability ,even overthrow the false liability.Chapter five explains the situation of strict liability in the USA’s tort law. In the late ten years in 20 century, the USA’s tort law has developed fast, in which the strict liability did not extend out of expectation. However, fault liability showed renewed spirit.in the field of product liability, strict liability is been limited in the faultiness of production, in fact, the faultiness of design and alarm have tried back in the framing of fault liability. In the meanwhile, in the other fields, strict liability has also showed the extinction to fault liability. Thus, fault liability regains the leading role; strict liability has become the exception and supplement of fault liability.The primary cause of stagnate of development of strict liability is the economic development stagnate which leads to the thought of free marketing has reshowed in the USA. Under the thought of free marketing, the sorts of theories of business liability are coming in a continuous stream , such as the marketing rate、prevention of accidents rate and so on. Therefore, the theories of business liability have become less influence; the extenuation of strict liability has lost the theoretical principle.The theory of the tort law has the trait in which the theory of the economics of the law of Posner and the justice of person of the moral philosophy coexist, the former considers that the main target of the tort law should be the repression of the economics, and the latter thought the chief value of the tort law is to correct the justice. The theory of Posner advocate the principle of fault liability, but different school of the theory of the justice of person has different opinions between the strict liability and the fault liability. However, in general, the theory of fault liability gains the upper hand. If there are no the varieties of economic and political reasons, the situation would be retained in a period of time in the USA.In the conclusion, this article reveals the inspiration of the evolution of strict liability in the USA’s tort law. |
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