Research On The Socialization Of Infringement Damage Compensation

It is emphasized in the common law system that “Where there is a right,there is a remedy”. The inadequate remedy to the victims and the tough policy on the party liable for the tort of the tort law are exposed in dealing with the tort indemnity incurred by modern science and technology and socialized mass production. Even though the tort law continues to be improved, whether the responsibility principle of fault, responsibility principle of no-fault or fair responsibility principle is unable to salve the above conflict actually. The defect can be concluded as ascertaining the individual liability of the infringer only rather than seeking for diversified tort remedy methods. The damage compensation method of “damage to either the infringer or the victim” is an obstacle to the progress of the tort law.In order to break the patter of individual remedy, the infringing act should be taken as not only a bilateral relation between the civil individuals but also a multilateral social relation. The infringement dispute between individuals being considered as a social issue is also a reflection of the social development from individual standard to social standard. After a long historical development, the tort law system has developed into a stable condition, and the individual remedy is its foundation, which is also a reflection of “on one’s own account” in the civil law principles. The matter is that the tort law itself is hard to make a breakthrough, and it would destroy the traditional tort law in one day to overturn it. However, it is effective to search for solution from its outside, which is the so-called “socialization of infringement damage compensation” introduced in this paper. The socialization of infringement damage compensation has established its specific system in reality, embodied in the established insurance system(especially the liability insurance system), funding system, the social relief system, and market share system arising in the United States.Chapter 1 The theoretical explanation of socialization of infringement damage compensationDefine the “socialization of infringement damage compensation”: corresponding to the individualization and the legalization of liability for tort, the “socialization of infringement damage compensation” means that on the basis that the individual bears the legal responsibility, the personal tort will be considered as social problem, the individual’s fault will be presumed as societal failure, and the responsibility will be borne in a socialization way instead of individual. The main characteristics of socialization of infringement damage compensation are that the infringement damage will be borne by society instead of individual originally, and the way of individual remedy will be replaced by social remedy. The socialization of infringement damage compensation includes the socialization of subject of liability, the socialization of responsible cause, and the socialization of method of bearing responsibility, something like the socialization of tort liability, the socialization of liability for loss, and the socialization of remedy for infringement, which actually mean the same. They all mean that the public organization shall bear the responsibility of indemnifying for the damage in place of the infringer after an infringement has occurred. After a comparison of the advantages and disadvantages of each wording, the “socialization of infringement damage compensation” is deemed as more accurate and precise.Chapter 2 The historical background and theoretical foundation of the “socialization of infringement damage compensation”The “socialization of infringement damage compensation” is the product of the industrial society development to a certain period. The author of the paper thinks that the historical background includes three aspects: the formation of the risk society, the mass of large-scaled infringement, and the transition of the concept of the tort law. People’s general comprehension of the tort law has also changed: the infringer and their wrongful act are no longer the primary focus, instead, the remedy to the victim is the objective of the tort law. In a modern society with high risks such as the medical accidents, traffic accidents, loss caused by defective products and environmental pollution etc, it is difficult to obtain moral foundation from the accountability of individual acts to destabilize the ethical basis of self-liability and negligence liability. The “socialization of infringement damage compensation” is not only an objective need of socialized mass production, but also has its sufficient theoretical foundation. The new distributive justice theory, theory of sociology of law and the social risk allocation theory provide strong theoretical foundation for the socialization of infringement damage compensation.Chapter 3 The breakthrough and development the the socialization of infringement damage compensation makes to the traditional tort lawThe new distributive justice has replaced corrective justice to be the value of the tort law. Breakthrough and development have been made to the value of traditional tort law by the values of liberty and order that takes the social benefit as basis. Breakthrough has also been made to the development of principle of strict liability and negligence liability, the theories of traditional tort law such as “act at one’s one peril” rule, and complete compensation principle etc that are no longer the guiding theory of the socialization of infringement damage compensation. The traditional tort law has also made its major breakthrough, and the prevalence of social standard has highlighted the importance of compensatory function of the tort law. By indemnifying the victims, we achieve our goal of a safe society, meanwhile, its suppression function and punitive function are not eliminated but only weakened.Chapter 4 The implement of the socialization of infringement damage compensation in the systemIn modern society, the socialization of infringement damage compensation is reflected in the vast field of infringement, among which, product liability, environmental pollution liability, liability for medical damages and motor vehicle accidents responsibility are more likely to occur and of typical significance. They are the main content of the special provisions of the tort law in our country. The total number of the above four infringement disputes make up of most of the civil tort claims, and also have a high degree of socialization of infringement damage compensation. This paper takes these four types of infringement disputes as the prototype to analyze how to implement the socialization of infringement damage compensation by using the concrete system. The paper focuses on the funding system and market share system in the part of approach to the socialization of mass product infringement damage compensation. In the part of approach to the socialization of medical damage compensation, the author mainly introduces the medical liability insurance, medical salvation funds and the no-fault compensation system in New Zealand. In the part of approach to the socialization of environmental pollution damage compensation, the author mainly introduces the liability insurance system and the damage compensation(indemnity) funding system. In the part of approach to the socialization of traffic accident damage compensation, the author mainly introduces the the liability insurance system and the social remedy funding system. The author has made a detailed comparison of the advantages and disadvantages of each approach.Chapter 5 The introspection and prospect of globalization of infringement damage compensation of our countryThe shortages of globalization of infringement damage compensation in our country are as follows: the slow development of globalization of infringement damage compensation, the narrow application field and the single applying method. In order to build the specific system of globalization of infringement damage compensation of our country, we shall put forth effort on four aspects as follows:1. Keep a positive interaction between the insurance liability and tortuous liability;2. Bring in the market share system to our country;3. Improve the remedy funding system and social compensation;4. put the globalization of infringement damage compensation into practice in the future civil code.The principle and value of the law exist in our country as well, but there is no divine relief or pursuing on ultimate value besides the law by comparison. The deficiency of the goal of value in tort law is more prominent. There is no research or exploration into the goal of value and value orientation of law in the law circle although the specific system of globalization of infringement damage compensation has already been brought in to our mainland. The liability insurance and tort law are the important part of tort compensation system, and only when the relation between these two systems are well balanced and no excessive tendency to the development and expansion of either one can we maintain a favorable influence and mutual promotion between them so as to better allocate the judicial resource.