Research On Hypothetical Causality In Tort Law

The legal effect of hypothetical cause whether a tortfeasor could defend himself on the basis of hypothetical cause is the core problem of the problem of hypothetical causation in tort law.To solve this problem,we need to clarify the concept and essence of the problem of hypothetical causation.On the basis of the discussion of foreign theory and judicial practice,the problem of hypothetical causation is divided into different categories.The conclusion of the discussion is aimed to help the judicial practice in China.In addition to the introduction and conclusion,the full text is divided into three chapters:Chapter I: An overview of hypothetical causation in tort Law.This chapter is divided into three sections,which are the definition of the problem of hypothetical causation in tort law,the essence of the problem of hypothetical causation and the research history of foreign countries." Hypothetical causation" is also known as "overtaking cause" and "repairing causation",which means someone's tortious behavior causes damage to the victim,however,the same damage would have been caused by some other independent factors without the tortuous behavior.Here,the tortuous behavior actually causes the damage,so it is called "real cause",such other factors are called "hypothetical cause".The damage is caused by the real cause,so the claim that hypothetical cause would have cause the same damage is virtual.The basic characteristics are as follows: The damage has arisen as a result of the tortious behavior;Hypothetical cause is not the cause of the damage that has occurred;Hypothetical cause could be pre-existing or follow the tortuous behavior;Although either the hypothetical cause or the real cause is sufficient to the specific damage,they are independent of each other,do not strengthen or offset each other;Hypothetical cause do not have to actually happen;The real reason can be act or omission.There are also differences between hypothetical causation,cumulative causation and alternative causation.The problem of hypothetical causation in tort law can be categorized according to the time of occurrence of hypothetical cause,the nature of hypothetical cause,and damage type.As an exception to the application of "but for rule",hypothetical could be better understood according to Necessary Essence of Sufficient Condition Theory.The same damage can be triggered by different groups of reasons in different time and space,which reflects the relationship between hypothetical causation and duplicated harm.The problem of hypothetical causation is closely related to the concept of "damage ".According to the Damage Difference Theory,all hypothetical cause should be considered,allowing it to affect the scope of damage liability.The Organization Theory and the factual state comparison theory insist that the compensation of direct damage is the bottom line.Normative Damage Theory argues that the effect of hypothetical cause should be determined by the purpose of law.The problem of hypothetical causation is mentioned in Digesta.Judges and scholars in German of civil law system and the United States of Anglo-American law discuss the problem of hypothetical causation.,and their opinion changes with times.Although the German academics sought to extract the applicable general principles from the hypothetical causation cases,the German courts eventually does not adopt any of the principles.Based on accumulated judicial decisions,the cases of the problem of hypothetical causation are loosely typified.The four types are as follows: damage to an object,annuity cases and permanent damages,Predisposition for damage,hypothetical responsibility of a third party.Chapter ?: Analysis path and influencing factors of the effect of hypothetical causation.After clarifying the basic questions of hypothetical causation,this chapter and the third chapter focus on the core problem of hypothetical causation-the legal effect of the hypothetical causation.Legal theories analyze this core problem from three aspects: First,a unified solution.This unified solution aims to find an solution to decide the effect of all categories of hypothetical cause,including "Damage Difference Theory","Rule of Offset" and "Symmetry Principle ".Judging by the "Damage Difference Theory",it is concluded that all hypothetical causes should be taken into account,which easily leads to unfairness."To avoid the damage caused by hypothetical cause" is not considered "interest" by legal theory in Germany.Although "to avoid the damage caused by hypothetical cause" is considered as some "interest" by some scholars in the United States,who refuse to apply "Rule of Offset" because of the limitation of legal causation and the law of restitution,While "Symmetry Principle " can only explain certain category instead of all categories of hypothetical causation.Second,the categories divided by hypothetical cause." Efficiency and Fairness test " and "General Life Risk Rule " are the theories based on whether there is someone to blame for hypothetical cause.According to " Efficiency and Fairness test ",hypothetical cause could be divided into tortious behavior and innocent cause.According to "General Life Risk Rule ",it is the plaintiff who should bear the general risk of life.When hypothetical cause is a tortious behavior,it should not be taken into account."Known Portents Standard","Attachment or Avoidability Test " and "So-far-advance/dishonesty Approach " are the theories based on the state of hypothetical cause.These three rules focus on when hypothetical cause come into exist and start to function.If hypothetical cause is pre-existing and bound to cause damage,the hypothetical cause could be taken into account.Third,the categories divided by the type of damage.The dominant academic view in Germany is to divide damage into direct damage and indirect damage to solve the problem of hypothetical causation.Only when the damage is indirect,hypothetical cause could be taken into account.However,Germany's highest court did not adopt this rule.Dillof,an American scholar,puts forward the theory of "Identity of Harm Test".He argues that the legal effect of hypothetical cause should be limited by "No-Windfall Principle " on the basis of identity.Although none of the above theories is the final answer to the legal effect of the hypothetical causation,from which we can extract three factors that affect the legal effect of the hypothetical causation: calculation point,the determination of the same damage and function and principle of damage compensation.First,damage calculation point is the time dimension to decide the effect of hypothetical causation.Only when damage calculation point is separated from the time when tortious behavior occurs,the effect of the hypothetical causation could be discussed.Second,the judgment of the same damage is the factual dimension of the legal effect of the hypothetical causation.According to the distinction between "damage as an unlawful event" and "damage as an unlawful result",it is assumed that the defendant's defense in hypothetical causation is primarily directed at "the damage as an unlawful event",while the damage in hypothetical causation is assumed to be the "damage as a result of unlawful results".The damage discussed in the problem of hypothetical causation is specific damage items rather than general damage.Only if the specific damage is considered the same,can we decide the scope of the legal effect of the hypothetical cause.Strictly speaking,to determine whether the two results are the same result,it is necessary to observe the causal processes that cause the results,and the results from different causal processes must be different.In the problem of hypothetical causation,there are two causal processes,one is between the real cause and the actual damage,the other is between the hypothetical cause and the same damage that would have been caused.This conclusion suggests that the problem of hypothetical causation is not a matter of fact,but a matter of function and principle of damage compensation.There is no same damage the real cause and the hypothetical cause are able to cause.Third,the function and principle of damage compensation reflect the value dimension of the problem of hypothetical causation.There are three functions in damage compensation,which are penalty function,compensation function and prohibit profit function.If the dominant function varies,the answer of the effect of hypothetical cause is different.Complete Compensation Principle and the No-windfall Principle derive from the compensation function and prohibit profit function.The No-windfall Principle requires the consideration of the characteristics of hypothetical cause.Penalty function requires the consideration of degree of defendants' fault.Chapter ?: Typological analysis of the effect of hypothetical causation.It can be seen from the analysis of Chapter ? that,despite the basic characteristic of the problem of hypothetical causation is the defendant could make liability defense,the problem of hypothetical causation cases could be divided into three categories,the pre-existing hypothetical cause case,the following hypothetical cause case and alternative legal behavior case.The pre-existing hypothetical cause case involves predisposition for damage problem and the pre-existing upcoming danger problem.The courts allow the pre-existing condition to affect the judgment of the scope of liability according to presumption of the time of existence of disease,the relax apply of the Egg-Skull Rule,or Tendency Principle.From the perspective of factual causation,tortfeasors only cause damage to "defective things" or "devalued person".In the following hypothetical cause case,the characteristics of hypothetical cause decide whether hypothetical cause needs to be taken into account.If the answer is yes,the extend of amendment will be decided by the same damage items.If hypothetical cause is tortious behavior of a third party,this hypothetical cause is not allowed to affect the liability scope.If hypothetical cause is innocent cause which is bound to affect the victim,it will be allowed to affect the liability scope.Alternative legal behavior is also called "the problem of unreal hypothetical causation",which refers to a defense put forward by the defendant that even if he act legally,the same damage will still happen,so he should not be liable for damage.There are both similarities and differences between alternative legal behavior and the other two categories.Among the two main types of alternative legal behavior,the "Omission-Act" type can be attributed primarily to the establishment of a liability or a factual causation problem;The effect of the defense in "Act-Act" type of alternative legal behavior is mainly based on the purpose of the law.On the basis of typological analysis,it is necessary to clarify the assumption of responsibility in the case of hypothetical causation.Hypothetical cause acts as an factor to make unstable lost interest certain,which is closely related to the future time,including expected interests,lost income and so on.Take income loss as an example of continuous damage,there are two rules to determine liability,one is the �No-Windfall Principle�,the other is the nature of damage.If the hypothetical cause is a tortious behavior,the hypothetical cause can't be taken into account.If the hypothetical causation is an innocent cause,the income loss after the occurrence of hypothetical cause should be born by the plaintiff,because it is the hypothetical cause that makes the scope of damage certain.Other unstable damage should be determined according to the details in cases.