Research On Proportional Liability

Proportional Liability is an apportionment of tort liability.This concept originated from the Anglo-American law and was gradually accepted by many countries.Based on the purpose of tort liability law,the tortfeasor should be responsible for his own tort or quasi-tort.Proportional liability is to claim that the tortfeasor bears the liability according to a certain proportion by comparing the causative potency and faults.With the development of big data science and technology,the way of statistical proportional liability is becoming more and more scientific and precise,and the in-depth study of proportional liability has been put on the agenda.In theory,although proportional liability has been accepted and applied to practice by some countries,the basic problems of theoretical basis,type division and standard setting of proportional liability have not yet formed an in-depth and unified understanding,but also lack of clarity in legal provisions.In China,there are few researchers on the topic of proportional liability,and the research only stays at the shallow level of the concept and basic types of proportional liability,and lacks a comprehensive and in-depth theoretical system.This article looks at the countries of the world,based on the introduction and practice of proportional liability in China,focusing on the classification system and core standards of proportional liability.It is expected that the core content of proportional liability theory can be beneficial for constructing the theoretical framework of proportional liability.In practice,there is no proportional liability in our law at present.In judicial practice,the application of proportional liability often seeks other solutions,which may lead to excessive deterrence or inadequate protection of victims.Therefore,the study of proportional liability in this paper can provide an important guide for the civil legislation and judicial practice of our country,and help the proportional liability to fall into our legislation and implement in judicial practice.The article is divided into four parts,in turn,the general theory of proportional liability,the types of proportional liability,the necessity and theoretical basis of introducing proportional liability into Chinese tort law,and the feasibility of exploring the mode of proportional liability in the practice of Chinese tort law.The first chapter begins with the concept of proportional liability,which is traced back to Professor John Makdisi of the United States who first proposed proportional causation.He believes that the proportional liability can be determined by the proportion ofpossibility of proving causation.The proportional causation lays a theoretical foundation for the formation of proportional liability.Therefore,early scholars called it causal proportional liability,which is now mostly referred to as proportional liability.When the causation between tort and harm is not very definite,according to the traditional tort law principle of “all-or-nothing”,the victim should prove that the causation between tort and harm reaches the standard of proof.If it reaches the standard,the tortfeasor shall bear all the liability for compensation,and if it fails,the tortfeasor shall not bear any liability.The proportional liability in a broad sense,regardless of whether the causation between the tort and harm meets the standard of proof,should share the tort liability between the tort and the victim,or between several tortfeasors or between the tortfeasor and the third person,according to the proportion of the degrees of their causative potency and faults.A comparative study of proportional liability shows that there are three kinds of global application of proportional liability: the first is “partial recognition and application”.The judicial practice of relevant countries and regions is more flexible,and the acceptance of “proportional liability” is also higher.Some creative practices have emerged.Austria,Britain,Israel,the Netherlands,the United States and Japan belong to the category of“partial recognition and application”.The second situation is “no recognition of jurisprudence,but partial application in fact”.When confronted with the causal uncertainty,the countries and regions concerned do not directly recognize proportional liability,but there are a large number of cases in the actual judicial practice.They either use “lost chances” doctrine in proportional liability to replace proportional liability,or implicitly use ratio in the discretion of judges.For example,France,Italy,Poland,Spain and Switzerland are in this category.The third situation is “neither recognition nor application”.The relevant countries and regions do not recognize or apply proportional liability.The reason is mostly that the judiciary is obsessed with causation in traditional judicial practice.The Czech Republic,Denmark,Germany,Greece,Norway and South Africa belong to this category.Subsequent research on the proportional liability of countries and regions that have partially recognized and applied proportional liability and the development of proportional liability in judicial practice,such as the provisions of the European Principles of Tort Law on proportional liability,and the development of proportional liability in Israel,the Netherlands,Austria,the United Kingdom,the United States and Japan.The existing legal provisions and judicial practice on proportional liability show that the proposed theory of proportional liability conforms to the principle of fairness in the formation of tort liability,the principle of justice in the theory of determining the scope of tort liability,the principle of effective distribution in the theory of tort liability sharing,and the deterrent purpose of the social effect of tort liability law.The second chapter is a comparative study of the types of proportional liability.Although some countries and regions already have proportional liability and related concepts,in order to express and understand it uniformly,some scholars have classified it.This classification is based on “harm”,and divides proportional liability into four categories and nine sub-categories: A,B,C,D and nine sub-type.Category A is “Uncertain Causes of Past Harm”,which includes five subtypes: A1 subtype is “Indeterminate Tortfeasor”,which refers to a case with multiple tortfeasors,uncertain which tortfeasor's acts caused the victim's harm;A2 subtype is “Causally Unrelated Tortfeasors and the Victims”,which means that multiple tortfeasors caused multiple victim's harm and which tortfeasor could not be determined.Which victim is harmed by the right holder;A3 subtype is “Indeterminate Victims”,referring to the uncertainty of the real victim among many possible victims;A4 subtype is “The Hard Cases”-the specific cause of harm uncertain,referring to the uncertainty of harm caused by a specific or certain cause in the case of multiple causes and one result;A5 subtype is “The ‘Lost Chances' Doctrine”,referring to the uncertainty of harm.The victim's chance of not being harmed or gaining benefits decreases,and the possibility of diminishing opportunities is uncertain.Category B is“Indeterminate Parts of Harm”,including two subtypes: B1 subtype is “Indeterminate Parts of Harm Caused by Tortious Actors”,which means that multiple tortfeasors cause harm to the victim,and cannot determine which part of harm caused by the victim;B2 subtype is“Indeterminate Parts of Harm Caused by Tortious Actors”,which means that other causes other than the tortfeasors cannot be determined.Part of the victim's harm.Category C is“Risks of Future Harm”,including C1 subtype “Future Harm Uncertain Entirely” and C2 subtype “Extent of Future Harm Uncertain”.All the above types of crossover and merger are classified as Category D “Combination Cases”.This chapter first describes the various types of cases,and then combines the typical cases of each subtype,then compares the legal effects of applicable proportional liability with solidary liability,no liability and other liabilities,summarizes and analyses the advantages and disadvantages of proportional liability in such cases,and then present the results of the survey of the forms of liability selected by each subtype case in sixteen countries or regions,Finally explain the solution path of this type of tort law in China.Tort law is the solution to this kind of problem.At present,in the case of A1 subtype“Indeterminate Tortfeasor”,the tort liability law of our country first judges whether the causation is established.If the causation is established,the tortfeasor is generally required to assume solidary liability.If the causation is not established,the tortfeasor is not liable.As for A2 subtype cases with “Causally Unrelated Tortfeasors and the Victims”,China regards them as “large-scale product tort” and assumes responsibility according to product liability,but has not adopted the market-share liability.For A3 subtype environmental pollution cases and drug cases with indeterminate victims,Chinese Tort Liability Law requires that the causation in the elements of tort be established,so as to be liable.In environmental pollution cases,tort liability should be shared according to the types of pollutants and emissions.For the difficult cases of A4 subtype “The Hard Cases”-the specific causation of harm uncertain,the tort liability law of our country will distinguish the main cause from the secondary cause,and then share the tort liability according to the strength of various causes.If it is not possible to ascertain the causative potency of various causes,the liability will be shared equally.If the victim has a fault,according to the size of the victim's fault,the negligence offset will be implemented,and the tortfeasor's partial liability will be reduced eventually.In the case of “Uncertain Harm Caused by ‘Lost Chances' ” in subtype A5,the tort liability law of our country recognizes the tort liability of“loss of survival chance”.However,the loss of the victim's “prize-winning chance” should be discussed in the scope of contract law,which is not clearly stipulated in tort liability law at present.For the B1 subtype cases of “Indeterminate Parts of Harm Caused by Tortious Actors”,it belongs to the common dangerous act in our country.Basically,we should assume responsibility according to the principle of proportional liability.First,we can confirm the size of the liability,and each of them should assume its own proportional liability.Second,we cannot confirm the size of the liability and assume it equally.This is also a kind of proportional liability.For the case of B2 subtype,which is “Indeterminate parts of Harm caused by Non-tortious Factors”,the application of our country's law is also more complex.For Category C “Future Damage”,Chinese tort law does not currently support compensation for future harm,but only reserves the right to appeal.The first is that the victim is at fault,the fault is reached,the victim's fault is partially reduced or exempted by the tortfeasor;the second is the third person's fault,the victim is jointly infringed,and the tortfeasor shares the liability with the third party;Two types of what can be considered applicable are proportional liability.Third,if other factors cannot be held accountable for tort,if multiple tortfeasors in this case cause damage,it isnot possible to determine the joint liability of their respective shares.Combined with the classification and application of proportional liability,this paper takes two aspects into consideration: one is the four steps to determine whether proportional liability are applicable;the other is to summarize seven factors related to proportional liability.After comparing and analyzing the specific categories of proportional liability in different countries,how to combine proportional liability with the existing tort system in China is the focus and difficulty of this paper.The third chapter is the necessity and theoretical reflection of the proportional liability in China's tort liability law.At present,the jurisprudence and practice of many countries and regions in the world have begun to seriously study proportional liability,while the research on proportional liability in tort liability jurisprudence in China is still relatively inadequate.This paper holds that proportional liability is of great benefit to solving the problem of liability sharing in tort liability law of our country.The current tort liability law of our country has clear and reasonable provisions for determining the reasons for the perpetrator to undertake tort liability,that is,the principle of imputation,but it lacks clear and scientific standards for the sharing of liability.Although Chinese tort law also refers to the principle of sharing liability according to their respective “liability”,it recognizes the principle of sharing tort liability,but it does not clearly stipulate the specific mode of sharing,and fails to solve the division of the actual proportion of liability.Secondly,the application of the existing imputation principle in China is influenced by many factors,such as unclear causation,causative potency and other factors.Firstly,the unknown causation affects the imputation.The analysis of causation in tort law includes two aspects: on the one hand,the causation of liability establishment is to determine the causation between the wrongful act and the victim's tort of rights;on the other hand,the causation of the scope of liability is to determine the relationship between the infringed right(such as physical tort)and the subsequent harm(such as expenditure for obtaining relief).There is a causal link.Causal uncertainty in tort means that the factual causation cannot be determined.Traditional tort law often finds that the causal uncertainty means that causation is not established.Therefore,the tortfeasors are not liable and the victim cannot get relief.This move does not match the value objective of the tort liability law compensation function.Secondly,the causative potency influences the imputation: if the causative potency of an act is large enough to change the original process of things,then the factor is the cause,and there is a causation between the factor and harm,and vice versa,it is a simple condition,and the causation between the factor and harm cannot be established.Therefore,the size of causative potency affects the establishment of causation,and causation also affects the imputation.Thirdly,other interventional factors(including the fault of the victim,the fault of the third party,natural causes,animal behavior)also affect the imputation.If the third party's behavior only causes part of the harm,whether the tortfeasors should bear the liability and how to share the liability should be studied.The existing tort law generally adopts the form of solidary liability when it is difficult to determine the size of liability sharing in solving the majority tort.When it is really difficult to share,it adopts the equal distribution.These simple and vague forms of liability sharing seriously affect the fairness,justice and deterrent function of tort law.Proportional liability can solve the problem of proof of causation and simplify the complex process of exercising the right of recourse after assuming solidary liability.The related factors of proportional liability are the possibility of causation,causative potency and fault of tort.First of all,the possibility of causation is to determine the establishment of tort liability and the scope of liability.Secondly,the comparison of causative potency and fault is an important basis for determining the proportion of liability of tortfeasors,mainly between tortfeasors and victims,among multiple tortfeasors,and between tortfeasors and other factors.Since the criteria of imputation and compensation for harms are basically the same,the three-stage theory of liability composition can also be used for reference in the stage of compensation for harms after imputation,that is,to examine the causative potency of the category of legitimacy first,and then to consider the fault of the category of liability.Therefore,in our country,we usually compare the magnitude of causative potency first,and then compare the degree of fault to determine proportional liability.Determining proportional liability is a comparative causative potency and a comparative fault in the category of relationship.In the category of modality,it forms the theoretical basis of participation,lost chances and market share.Among the modal categories,first,participation is widely used in medical malpractice tort,traffic accident tort and environmental pollution tort.The “Lost Chance” Doctrine is also one of the bases to confirm proportional liability.Its core content has three aspects.The first aspect is that the object system of compensation for harms refers to “Lost Chance”,which is not the direct harm suffered by the victim;the second aspect is that the victim does not need to prove the causation between the injured act and the final harm,but only need to prove theaddition.The third aspect is that the calculation of compensation needs to weigh the opportunity value lost by the victim.Third,market-share Liability,the theory that the producer of the product should bear a certain proportion of compensation liability to the victim according to the market share of the product when the defective products of many enterprises cause harm and cannot prove the specific product of which enterprise is harmful.Market-share liability belongs to a kind of corporate liability,which is mainly applicable to the product liability of enterprises.Generally speaking,“the larger the market share of enterprises,the greater the profits they will get,and the greater the liability they should bear.”Chapter ? is the practice of proportional liability in tort law in China.As of January2019,“China Judicial Documents Network” can find 1679 cases of proportional liability applied in judicial practice in China.At present,our country has paid attention to proportional liability.It is mainly reflected in two aspects: on the one hand,the recognition of proportional liability in the legislative field,and on the other hand,the discussion of proportional liability in the theoretical research field.This section mainly explores the following three aspects: first,whether it is necessary to introduce various types of proportional liability into Chinese judicial practice;second,comparing the current legal solutions and proportional liability in the same types of cases,to analyze which solution is better and more accurate;third,how to combine proportional liability with our practice,that is,proportional liability in our existing tort law.Considering the main elements of tort liability in China,harm,fault and causation,this paper tries to perspective proportional liability from three dimensions,and classify proportional liability reasonably.Proportional liability is divided into four types: the subject of tort relationship is uncertain,the causation is uncertain,harm is uncertain and the compound type to plan the types of proportional liability and various subtypes.The unknown subject of tort relationship corresponds to the problem of proportional liability of tort and victim's fault identification,the problem of proportional liability of causation corresponding to unknown causation,and the problem of proportional liability of harm corresponding to unknown type of harm.For example,“the Subject of Tort Relationship is Uncertain” includes “Indeterminate Tortfeasor” and “Indeterminate Victims”.“Causal Uncertainty in Tort” includes two sub-categories: “Causal Unrelated Tortfeasor and Victim” and “The Specific Causation of Harm Uncertain”.“Indeterminate harm” includes five sub-categories: “All Harm Uncertain”,“Indeterminate Parts of Harm Caused by Tortious Actors”,“Indeterminate Parts of Harm Caused by Non-tortious Factors”,“FutureHarm Uncertain Entirely” and “Extent of Future Harm Uncertain”.At the same time,the degree of recognition of various seed types in different countries was investigated and studied.The practice of proportional liability in tort law of our country is based on the type of proportional liability.“Indeterminate Tortfeasor” usually combines with the liability of throwing objects in buildings.Modern scientific methods can narrow the scope of tortfeasors and share proportional liability when the subject of liability tends to be clear.Combining “Indeterminate Victims” with environmental pollution cases,after investigating the victim,according to pollutant emissions,emission range and other parameters.“Causal Unrelated Tortfeasor and Victim” and large-scale product tort cases are combined to divide proportional liability according to market share;“The Specific Causation of Harm Uncertain” and medical dispute cases are combined to determine proportional liability according to the degree of medical fault participation confirmed by medical expertise;“All Harm Uncertain” and lost chances cases are combined.By quantifying the value of opportunity interest,we can determine the proportional liability;“Indeterminate Parts of Harm Caused by Tortious Actors” is usually combined with traffic accident cases caused by multiple vehicles,and the proportional liability of each party is determined according to the fault of both parties and the magnitude of the causative potency;“Indeterminate Parts of Harm Caused by Non-tortious Factors” is combined with the case of harm caused by the provider of labor services,according to each party,sharing proportional liability for one's own fault.Of course,the application of proportional liability has not yet been perfected,especially in the legal context of tort liability in China.The standardization and systematization of its classification,the relationship with the principles of tort liability attribution and the changes in the forms of liability sharing caused by the introduction of proportional liability still need careful and in-depth exploration,which is the direction of my next research.