On The Liability Of Danger

The liability of danger is a concept mainly used in Anglo-American law and German law and gradually adapted by Japan, Switzerland, and China Tanwan since the 20th century. It is called "liability of extremely activity" or "liability of highly dangerous activity" in Anglo-American law. In German law, it means the liability for damages caused by the danger of enterprise, instrument, and/or article themselves, which should be assumed by the owner or trie holder of the enterprise, the instrument, and/or the article regardless of their fault or not. The Restatement of the Law, Second, Torts stipulates the following factors which should be considered, the already existed highly dangerousness to certain people, land, or animal; the higher probability of the act to cause damages; unavoidablility of the danger in spite of reasonable awareness; the act being of unusual use; conducting the act in an unreasonable place; the value to the public.A for the theoretical basis of the liability of danger, German scholar Mr. J. Esser, in his book 玊he Basis and Development of the Liability of Danger ?, points out that the liability of danger is not the sanction to violations of law. The basic idea of the liability of danger lies in "the reasonable distribution of unlucky damages". The main reasons are: (1) the doctrine of origin of danger, i.e. the owner or holder of enterprise, instrument, <|>r article assume the liability because they create the danger; (2) doctrine of control of danger, i.e. the enterprise assumes the liability for it ?controls the danger in certain extent; (3) doctrine of "enjoying benefit, assuming liability", i.e. the owner or holder of enterprise, instrument, or article assume the liability because they enjoy the benefit; (4) doctrine of allocation of losses, i.e. the damages occurred from the liability of danger should be dissipated through the price mechanism of commodity service and insurance system.Several unique points of view in Anglo-American law about the theoretical basis of liability of danger add to Mr. J. Esser's theory. They are cost dissipation, damages prevention, equity concept, and evidence preservation. They believe that the damages should be borne by the party concerned who has the capability of cost dissipation, and, with the enterprise who creates danger adding the losses it undertakes to the cost of its product, be finally dissipated to thousands and thousands pf consumers who buy the product, reaching the goal of allocation of losses in cost. The liability for damages should be assumed by the party who is capable of performing the duty of awareness and avoiding the accident. The victimnormally has not such capability while the danger creator does have the capability to prevent the damage occurring. Based on the concept of equity, the creator assuming the liability is the requirement of justice for he always benefit from the dangerous activity. The make of the liability of danger is also the requirement of evidentiary preservation in procedure law. Because the accident caused by the extreme activity, e.g. the explosion of explosive, explosion of bulk gasoline, and flight accident and etc., may destroy the evidence in the course of the accident and thus make the evidence disappear, it is obviously impossible for the plaintiff to prove the defendant's fault. The defendant should take the strict liability for the damages he caused in his highly dangerous activity.Cases of the liability of danger fall into many different categories and types. The judicial precedents of the court in the U.S.A greatly facilitate us to understand the liability of danger. There are 6 types of such liability. (1) Explosion accident. It mainly means the explosion necessary for engineering construction and other reasons, resulting in personal injury and property damages. (2) Storage of dangerous articles. The American court usually believes that the damages caused by the storage of dangerous articles, such as explosives, poisonous chemicals, and the oil-tank in oil station, constitute the liability of...