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The Determination Of Joint Tort

Posted on:2017-08-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y Y ZhuFull Text:PDF
GTID:1316330509453657Subject:Civil and Commercial Law
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As an important system to determine the doctrine of liability in the case of multiple torts,the joint tort system has received full attention in the legislation process and academic research about the torts, and it is no exception in China. The core of the research about the joint tort system lies in how to define the joint act of tort clearly, and from this we can distinguish the joint tort and the multiple torts. This paper aims at pinpointing the function of joint tort system accurately and revealing its operation mechanism further. On this basis, it can provide a judgment standard for the joint tort, and also find an effective doctrine of liability fixation for other multiple tort acts.The article can be divided into two parts according to whether it is joint tort or not. The first part focuses on the definition of joint tort, which aims at revealing its core factor, and clarifying the application of the Article 8 of the Tort Liability Law of the People's Republic of China. The way is that the article states the legal basis that the joint tortfeasors bear joint and several liabilities.Part one includes Chapter One and Chapter Two. Chapter One meanly bases on justice practice and academic theories. It explores the existing verdict problem about joint tort in the current judicial practice, and teasing the history of the theory of this point in the past 30 years, including the summary in problematic mode. Chapter Two is the core content, which focuses on how to define the joint tort act. Based on clarifying the purpose of the joint tort system, only if the tortfeasors practice the harm behavior, jointly and willfully, which cause the damage, the joint tort can be affirmed. The joint intent means that there is intentional contact between the tortfeasors, and based on which they have a common purpose. If other's legal benefits are infringed, for the assign liability, all the tortfeasors should be recognized as one subject for a legal evaluation. This is the legal basis of the joint tort. In view of the term usage in China, the joint intent is also called intentional contact sometimes, so the intentional contact does not mean communication, but means the unified content to infringe other's rights or legal interests. In a brief, the unified content is focused on the result, not the act. Therefore, the so-called joint negligence, and the tort under integration of intent and negligence, cannot be recognized as joint tort.The core of Part Two is the doctrine of liability assignation of the multiple torts, in which there is no intentional contact. The other purpose of this part is toilluminate the relations between the Article 11, Article 12 and Article 10 of The Tort Liability Law. Part Two includes Chapter Three and Chapter Four. The basic logic of liability assignation is that Article 8 does not apply to the multiple torts without intentional contact, and the core of assign ability should be the cause and effect relationship, and then the basis for right of claim. Chapter Three pays attention to the concurrent causation and cumulative causation. Under the concurrent causation system, the tortfeasors should bear unreal jointand several liability. Because in this situation, every tortious actionhas a causal relationship with the same damage,and according to the general principle of assign liability, each actor should be responsible for the damage. The contingency and identityconforms with the nature of unreal joint and several liability. Article 12 should be interpreted as a standard aiming at the inner liability assignment of the multiple actors. As to the assign liability of tortfeasors under the cumulative causation system, according to Article 11, the research should lie in the fact that the tortious act by each person is sufficient to cause the same damage, which means that the acts objectively cause the damage at the same time. Otherwise, it should not be the same damage, but uncertain portion of each tortious act. Chapter Four tries to solve this problem: the respective tortious act causes respective damage, but all the damages blend together and in a horrible haze. The uncertain portion results in the confusion of causation between the tortious acts and damages. So the sufferers will get into a dilemma that he is unable to claim his rights. There is no difference between this problem and the alternative causation of the joint danger. Therefore, Article 10 should be applied and the tortfeasors should bear joint and several liabilities.
Keywords/Search Tags:The joint tort, Intentional contact(joint intent) Concurrent causation, Cumulative causation, The cases of uncertainty of the respective portion
PDF Full Text Request
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