Research On Objects Protected By Tort Law

In the theory of criminal law,the object of crime is an independent and material topic.However,object is a rarely used research term and topic in tort law.Most broadly defined,the object of tort refers to object harmed by tortious act,which can also be phrased as the object under the protection of tort law.This thesis makes object the topic and the research center because object is the key foundation of research on requirements of tort liability and tort law.It is assumed that the expansion of the objects affects the requirements of tort liability and leads to new developments of tort law,which is fully disclosed in the development of German tort law.This Thesis endeavors to systematize the development and the trend of objects in tort law,then shows suitable and preferred model of protection and interprets our tort law with the preferred model.In addition to preface and conclusion,this thesis is composed of seven chapters.Chapter 1: Abstract of Theory of Objects Protected by Tort Law.This chapter focuses on introducing object as a key notion into tort law and making a definition.The notion of objects protected by tort law on the first level refers to legal order;Secondly,it refers to freedom enjoyed by civil entities,including personal freedom,spiritual freedom,property freedom;Thirdly,it refers to body,physical objects and invisible objects which are directly effected by tortious act.Objects protected by Tort Law can be divided into two basic categories: rights and interests.Interests can be further summarized into four types: character interests,relation interests,pure economic interests,pure emotional interests.In tort law,different protected objects can have different establishment requirements and protected scopes.Chapter 2: Protected Mode ?: Mode Defined by Rights and Interests.Traditional and original German mode was a closed system centralized on rights and interests,trying to limit the scope of protection for interests and thus limiting the scope of liability,through the manner of establishing different rules for rights and interests based on their differences.As a matter of fact,original German mode has its intrinsic defects: impossible to differentiate rights and interests based on a single rule,inadequate protection for interests,insufficient relief for nonfeasance tort.In order to solve theses problems,German judicial practices have established the right of an established and operating business,the general right to personality,which together with the establishment of general duty of care and the adoption of new conduct standard of unlawfulness,broke and remodeled German mode.Judicial practiceswhich focus on balancing different interests on a case to case principle play a key role in the process.The same changing process has also taken place in Japan which adopt traditional German mode.Chapter 3: Protected Mode ?: Mode Defined by Damage.French protection mode is established on the element of damage and takes an open stance for new objects protection,generally providing relief for property damage and non property damage.As for the limitation of objects,French mode uses the requirements of fault,causation,and especially damage as its key instruments.Chapter 4: Protected Mode ?: Mode Defined by Duty of Care.Based on research on the United States,it can be concluded that duty of care and negligent liability base thereof is a key factor in the development of Torts Law as an independent branch of law as well as in modern Torts Law.As new objects protected,pure metal interests are protected basing on the intimate relation between the people directly harmed and the plaintiff,which is tested under the rule of foreseeability.Pure economic interests is categorized into different types such as product liability,professional liability,liability for obstruction of resources usage,and protected accordingly with different rules with the same reliance on the rule of foreseeability.In Wrongful cases,different understanding of the objects actually harmed can lead to different judgments and courts refer to public policy to limit liability.Chapter 5: The Theory and Practice of Protected Objects in China.Theoretical understanding of objects protected by Tort Law developed from concrete to abstract,gradually confirming interests as an independent category of objects.This chapter summarizes three important theoretical disputes.The first one is the dispute over the mode of the general clause of Tort Law.The second is the dispute over the requirement of unlawfulness.The third is dispute over how rights should be differently protected as compared with interests.The essence and core of these disputes is whether to set an open frame for objects protection.German general clause,requirement of unlawfulness,different general clause for rights and interests are judgments based on the closed system of German Mode and inevitably inherit the same intrinsic flaws.Protection and limitation for objects based on the requirements of liability themselves is a new choice.In practice,the supreme court as well as different level of district courts intend to provide protection for new objects and to confirm rights in their judgments.Courts do not limit their protection for interests generally,but on the opposite use requirements of liability for limitation.Practices sometimesuse damage and duty of care to rationalize their judgments.Chapter 6: The Foundation and Manner for the Confirmation of New Protected Objects.New protected objects are new either in the aspect of subjects or the content of the objects.In order to be confirmed and protected,new objects must have three characteristics: valuable,scarce,affiliated.Furthermore,they must be recognized by society.New objects can be confirmed in two ways.The first is to be confirmed by laws.The second is to be confirmed by judicial practice and judgments.The latter manner is necessary because of the limitation of legislations.And it is possible because of the unique characteristic and purpose of judicial process.To be more specific,judicial judgments can be a form of law and thus having the power of confirming and establishing new objects.Chapter 7: The Protection and Limitation of Objects by the Chinese Tort Liability Law.After looking back through the history of the legislation,this chapter argues that legislator has established an open mechanism for objects protection,providing board protections for different kinds of new objects.Thus,the term “rights and interests” used in Article Six of the Chinese tort liability Law should not interpreted to limit the range of objects and the scope of protection.On the opposite,the confirmation and limitation of new objects can be achieved through the dynamic application of the general clause which means that the requirement of fault,damage,causation as well as other meaningful elements can establish liability independently or cooperatively.At the same time,these requirements can place limitation on the scope of new objects and liability.While the requirements of liability provide external and theoretical frame for limitation,balancing tests on a case to case principle for different interests such as interest of the plaintiff and defendant,interest of the related group,interest of the system,public interest,is the internal mechanism which decides whether new objects should be recognized and to what scope it should be protected.Based on the research of this paper and the text of European legislation drafts,this chapter also provides several draft clauses for further perfection of Chinese Tort Liability Law.