Study On Defenses In American Tort Law

Relief is the basic function of tort law,but does not mean that all legal interests can be protected by tort law,relief depends not only on the defendant's behavior,but also on the rights of the plaintiff.In other words,there is no harm to damage,tort law must take into account the interests of the defendant,to seek a balance of interests between the two sides.The defense is an important weapon for the defendant to demand and maintain the interests of the antithesis,which is an important mechanism for the balance of interests and justice.The development of the system of tort law in the United States is becoming more and more beautiful,which is of great significance to the formulation and research of the defense of the future civil code infringement.In this article,the article discusses the relationship between the defense and the infringing theory in order to clarify the boundary between the defense and the elements of the infringement,and summarizes the types and historical sources of the defense in the US tort law,Scope of application,applicable rules and possible future trends.In addition to the introduction,this article is divided into six chapters:In the first chapter,the content of the defense in the tort law and the type of defense of the US tort law.This chapter is divided into three sections:First,the connotation of the defense law in the tort law,from the historical point of view of the civil law system of tort law and the United States on the grounds of the defense of tort law,and then compare China's tort law and the United States tort law against the content of the debate Different understanding.Secondly,from the tort law to defend the relationship between the grounds of infringement and understanding of the concept of the concept of defense to explore the reasons for the defense and the elements of the boundaries of infringement.Tort liability is the result of the defendant's defensive interests and the defendant's confrontational interests.The result of the independent defense and the infringing act should be parallel and parallel.The defense can cause the missing elements of the infringement,leading to the exemption and mitigation of the responsibility.Independent defense is not so much a matter of defense,it is better to say that it is not yet from the theory of infringement and can affect a specific constituent elements of the responsibility constraints,such as tort law in China as an independent defense of the third person Reason,in the United States tort law infringement violations only as a cause of intervention to consider,although it may also slow down or eliminate tort liability,but not an independent defense.Third,the type of tort law in the United States and the type of defense.The US tort law divides the type of infringement into intentional infringement,negligent infringement and strict liability,and different types of infringement correspond to different defenses.Therefore,the type of defense in the United States tort law based on the type of infringement of the different types of infringement is divided into the grounds of the defense,the act of negligent acts of infringement and strict liability for the defense.In addition,defamation as an important part of the US tort law,in its independent development process also formed its own unique defense.Chapter 2,the United States tort law on intentional infringement of the defense.In this chapter,we first explore the historical origins and core elements of intentional infringement in American tort law.In the United States tort law,intentional infringement from the thirteenth century,the common law writings,including illegal violations,beating threats,wrong detention,infringement of movable property and land infringement.Deliberately is the core elements of intentional tort,with two meanings,namely,purpose and knowledge,is an important tool for the parties against the cause of active defense.Such as helping the plaintiff to defend the defendant from the risk,and the negligence and other reasons for the defense,making the cause of the more reasonable.The second,third and fourth sections introduce three different types of defense:consent,defense and emergency avoidance.Consent can completely block the tort liability,the United States tort law on the scope of the consent and the nature of the performance of the limited,beyond the scope of consent or for certain special acts(such as criminal acts)can not agree to agree with the validity of the consent.Defense includes self-defense,others defense,property defense and property to retrieve four basic types.Other defense and property defense are derived from self-defense,need personal or property facing immediate danger,apply to the "castle principle." And most US courts do not recognize the defense of all the property.Emergency hedge is divided into private emergency hedge and public risk emergency hedge.Chapter 3,the defense of the tort law in the United States.In this chapter,we give a brief introduction to the historical origins,constituent elements and non-independent tortious acts of infringement in the tort law of the United States(the limitation of liability).Secondly,it has analyzed two major defenses in the case of negligent tort:comparison of negligence and self-interest.To compare the fault with the fault of the rules,divided into pure comparison and correction of the comparison of fault.Pure comparative negligence is favored by American scholars and American courts,but most states in the United States have adopted corrective errors;they are divided into explicit risks and at their own risk,but are gradually replaced by comparative rules of negligence.But in sports,recreational activities and other sports cases,the US courts are still keen on the application of the rules.Chapter 4,the United States tort law on the strict responsibility of the defense.This chapter consists of four sections,first of all,the United States tort law strict liability on the historical origin and strict liability type.In the United States,where liability for negligence is the responsibility,strict liability types include strict liability for animal abuse,strict liability for unusually dangerous activities,and strict product liability.Second,the United States strict liability to defend the force majeure,force majeure is not as a strict liability for independent defense,but usually by the US court called "defense",is a non-independent defense.Third,the study of tort law in the United States on the strict liability of the more fault and self-Gan risk.Since the Supreme Court of California in Daly v.General Motors Corp has applied a comparison of negligence rules to compare whether the fault can be applied to strict liability is controversial,at present only a few states have recognized the strict liability of the more negligent defense,and more and more courts Tend to recognize the defense.Self-Gan risk is recognized as a strict liability for the defense of the matter,but because of the rules of the occurrence of negligence,self-willingness in the strict liability of the application has gradually been questioned.Fourth,the analysis of the strict product liability of the defense.Chapter 5,reputation infringement defenses in American law.This chapter is divided into three sections,reputation infringement as an important part in Americn tort law,different from the traditional three types of tort and have their own independent development process.Among them,the most typical is the defamation law,to defamation law as an example to explore its unique defenses.First of all,it introduces the historical origin and constituent elements of defamation in American tort law.The American Defamation Act inherited the British law and experienced two stages of common law and Constitutional development.Under the common law rules,defamation infringement follows the strict liability rules,and the Constitution creates the actual malicious principles of government officials and public figures,easing the traditional strict liability rules.Secondly,it analyzes the two major defenses of defamation,namely,actual defense and privilege.The sixth chapter,the reflection of our country's defense system,learn from the system of United States'.The system of defense in China's tort law should make the following changes:Establishing the type of defense with the type of infringement act;Increasing the type of defense;Adjusting the application of defenses;Clarifying the concept of chaos.