On The Obligation Of Tort Law

Tort law is a legal norm concerned with liability.Though obligation is naturally connected with liability,the research on liability from the aspect of obligation is not frequently seen.Correspondingly,there are few systematic researches on the obligation of tort law.The present study tries to collate and explain the logical system of tort law from the perspective of obligation based on the perception of obligation-centered theory of tort law.This study constitutes seven chapters.Firstly,the definition of obligation in tort law will be given and analyzed in terms of its essential features and performances.Then the research question will be revealed from the historical development of obligation in tort law.Besides,the position of obligation in tort law will be unfolded and the specific meaning of obligation in tort law will be given from two angles—categorization and disposition of obligation.Then it will discuss the implications of obligation to tort law system from the viewpoint of constitutive requirements of liability of tort law.After all,the study aims to evaluate the gain and loss of The Tort Law of the People‘s Republic of China and provide some possible ideas to the improvement of this system.The obligation in tort law involves two basic elements,which are natural behavior and possible liability.Natural behavior is a behavioral mode which pays reasonable attention to the safety of others‘ rights and interests.Therefore,obligation in tort law is a duty of care in terms of its content.As a matter of fact,obligation in tort law is statutory and absolute.However,the subject of liability has developed from non-specificity to specificity.It is found that obligation has evolved to be a prime tool in tort law to respond to changes through the investigation of obligation in tort law of two law systems.Moreover,the theory of obligation changed the methodology of traditional tort law in the civil law system,which had transformed from ?right—right violation—liability? to ?obligation—obligation violation—liability?.Besides,it was based on the control of rights with behavioral investigation.With the analysis of behavior,it will be decided whether the actor should be responsible for tort liability based on the standard of the duty of care of a reasonable man.Through the role-playing of obligation of tort law in modern tort law,more thoughts will be triggered in terms of the position of obligation in tort law.By analyzing the essence,evolution,realization and the particularity of tort law,the present study brings about the point that obligation is the center of tort law and obligatory rule is the center and logical beginning of tort law.As for the application of law,the existence of obligation is the premise of accountability and should be the core of tort liability.The future civil law will be a radiating system with civil rights as the core.As a result,liability,as the center of tort law,will be the theoretical basis of tort law(which is independent from the law of obligation and different from the law of interests).In terms of the question of what obligation is as the center of tort law,it will be answered by categorization and disposition of obligation.The system of obligation group in tort law will be accomplished by categorization and disposition of obligation.Through the expansion and limitation of this group,the study will reflect the evolution and progress of tort law in terms of the limitation and expansion of obligation,the origin of lawful obligation and general duty of care and its categorization rather than the boundary of obligation.The basis of disposition of obligation can be given through comprehensive analysis of legal philosophy and economist of law: highest duty of care of the actor is not the optimum one.For both sides,the optimum strategy is to adopt due duty of care(x* and y*)to reach minimum social cost(L)so that efficiency and fairness can be reached.Meanwhile,as the gathering of ethics principles,the disposition of obligation should obey these principles and reach the balance of free behavior and safety of rights by reasonable standard.The factors that need to be taken into consideration in terms of disposition of obligation involve predictability,avoidable possibility and public policy as well as the reasonable expectation of aggrieved party.The implications of obligation-centered theory in tort law mainly resonate on the composition of tort liability.Firstly,obligation in tor law logically connects fault liability and no-fault liability.As for the specific factors of liability,it is possible to comprehensively establish illegality and liability through obligation and obligation violation due to the objectified fault identification and transformation of determination of illegality(from worthless result to worthless behavior).The implication of obligation towards causality radiates to liability establishment and extent of liability.Through the correlation of the extent of damages and duty of care that constitute the fault of actors,the effect of obligation as a tool of strategic value judgment can be realized.The aims of research on obligation of tort law are to examine the construction of current tort law system and tort theory.Therefore,the present study evaluates the gain and loss of The Tort Law of the People‘s Republic of China and provides some possible ideas to the improvement of this system.At the first place,the present study gives out a general evaluation to The Tort Law of the People‘s Republic of China from the perspective of aims,structure and position and performance of obligation.Then two specific rules are picked,which are article 37(security obligation)and article 87(damage sharing obligation),to conduct empirical analysis with the combination of the effects of standard implementation.The analysis will reflect the gain and loss of disposition of obligation from micro perspective and correspondingly propose some ideas of the institutional arrangement of obligation in tort law.It is thought that in the future China‘s civil law,the part of tort law should adopt the deductive structure which includes general conditions and categorization.General conditions will be constructed through obligation in tort law in order to ensure that the accountability of tort liability is based on the infringement of rights and interests or violation of obligation.As a result,there would be three elements in the composition of tort liability,which are tort behavior,damage and causality.Correspondingly,specific rights and interests will not be specialized in general conditions.Instead general provisions as or not as obligation will be listed.In the specific part,the behavior of infringer will be the beginning of the system to categorize tort behavior and standardize the core elements of liability through stipulating the content of obligation and obligation violation under every behavioral liability.In this way,unitive logical links and main lines can be found in the separate parts of the study so that the construction of tort law system could be accomplished.