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The Elaboration On The Burden Of Proof Allocation Of The Bred Animal's Tort

Posted on:2012-10-21Degree:MasterType:Thesis
Country:ChinaCandidate:F F ZhangFull Text:PDF
GTID:2166330332494958Subject:Procedural Law
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It should not be nelected that bred animals can give emotional comfort. But bred animals tort cases take place frequently.The relevant disputes caused processing extensive attention of the whole society,especially the changes of legislative. Tort law in the year 2009 establishes independent chapters which contains seven laws for the liability for the bred animals tort.In the flesh and blood of the norm of law,it changes the nonfault liability to dual liability,and makes a distinction between the common animals tort and the tort for the animals in zoo.The theory of burden of proof entrance our country for long.But it cannot yet play the relevant role.On the one hand,this theory is so complex that academic research was not yet in place.Discussion of burden of pfoof was confined to the domain of Procedural law and Tort law was to the field of substantive law before,which paied no full attention to its dual-roost. On the other hand,it is related to jugments on burden of proof was lack of essential persuasion.This article is established in Rosenberg's theory,makes the rule of one hundred and twenty-seven in Civil law as the primitive rule,and makes the new rules in Tort law as the special rule.It divides the important document of liability for bred animals tort into producing elements and hinder elements and expounded how to distribute burden of proof as well as its legitimacy.The writer considers,in the type cases of bred animals tort,burden of proof is also distribution of benefit and risk.People accept material and mental enjoyment from animals,at the same time, obligations and responsibilities need to be deployed. Judgement which applys to the burden of proof accord with "For nothing" presumption of litigation logic.Both parties has full game to realize distributive justice from substantive the meantime,this can also pays less social wealth,with minimal cost achieves maximum income, improves the efficiency of lawsuit.The analysis depends on four basic theories mainly.First is the spirit of modern tort legislation. In view of the civil legislation advocates freedom of action principle, Tort law's Primary purpose should be to protect the interests of the infringer,the second objective is to protect the interests of the victim.Therefore, the distribution of elements of burden of proof responsibility should weigh the interests of both parties and change the traditional thinking of punishing the infringer.Second is "For nothing" presumption of litigation logic. It make the distribution of who advocate who rules as a normal burden and the burden of the inverted as normal.It clear that in the bred animals tort cases, should distribute the two responsibility producing elements to the victim bear the burden of proof.This two elements contain bred animals cause damage and damage facts and illegal behavior exist causality.Third is the"Risk theory".For the victim's fault in hinder elements, this article constructs a game model with the standard of duty of care which must be owed by animal owner or manager and victim.The model regulates both parties may choose appropriate caution or not carefully.Based on the cost comparison of different subject avoid risk, it is concluded that giving the burden of proof of victim fault to infringer is valid.Last is security obligations the zoo beared.In the part of special rules of distribution of burden of proof in Tort law,it mainly analyses the zoo fulfills the duty of management in hinder elements.Then finds that the zoo bears more security obligations than ordinary animal owner or manager. For the rights and obligations under the condition of peer-to-peer, it shall give the zoo more disclaimer reasons.This article has four parts.The first part defines bred animals tortious liability.This part makes bred animals tortious liability as the special tortious liability and give a brief introduction from multi-angle like subject of liability, established conditions,limiting conditions and imputation.It confirms the characteristics have caused damage is bred animals, and liability form is the alternative responsibility for things,and explains constituents of bred animals tort liability from producing elements and hinder elements. Last it analyses the development history of imputation,from fault-presuming to no-fault liability until present binary imputation.The second part discusses the basic matter of burden of proof allocation of the bred animals tort.This section includes value of burden of proof allocation of the bred animals tort and burden transfer. It analysis in burden of proof allocation of the bred animals tort has legal value and economic value,legal value have entity value of distribution interests, risk and liability and procedure value to solve when suffers from facts judgment dilemma.we construct a model to imitate bred animals tort case,then analyse under two circumstances of plaintiff or defendant loses the case,judgment with or not burden of proof,the influence for social wealth when proof a legal requirement. Thus clarifies its have economic value of save social costs and improve the efficiency of lawsuit. In the burden transfer only analysis its first meanings,clears metastatic of burden of proof and dynamic metastatic.The third part is primitive rules of burden of proof of allocation of the bred animals tort.It makes the rule of one hundred and twenty-seven in Civil law as the primitive rule and divides it into two produce elements and two hinder elements. First it explains this part is based on the theory of modern torts, namely, in view of the spirit of civil legislation advocating freedom of action principle,explicits Tort law primary goal is to protect the interests of the nfringer, the secondary is to protect the interests of the victim. Producing element of bred animals causing damage is distributed to victim bear the burden of proof.the victim should prove damage or loss to determine existence and the degree,only disrupt state does not hold up tort claims. The element of damage facts and illegal behavior exist causality does not suitable for the burden of the horse,because of "For nothing" presumption of litigation logic.We should not do the normal proof responsibility allotment.For the two hinder elements of the victim intent or gross negligence and damage caused by a third party,we construct the game model involves animal owners or managers and the victim,comparise the price paid which both sides make appropriate caution or not cautious behavior choice to define let the infringer bear this burden of proof is reasonable.The last part is special rules of burden of proof of allocation of the bred animals tort. It makes the new rules in Tort law as the special rule, through the summary of 7 clauses, it is concluded that hinder elements and imputation system changes. Hinder elements increase the zoo can prove doing his management responsibilities to relief because of its security obligations. From zoo's special properties, particularity of public activity places, particularity of the raising object and different nature of obligations four aspects, it concludes that the bear higher degree security obligations than ordinary animal owners or managers. Thus, after the zoo fulfill do its duty,we should allow it to advocate disclaimer. The legislation ruled the third person due to fault out disclaimer ranks, provised animal keepers or managers and the third person bear no real joint liability, embodies the separation of litigation responsibility and ultimate responsibility. Because proof responsibility judgment realizes litigation responsibility, and ultimate responsibility belongs to the substantive law part, should be shared by substantive law after judgment. In the final analysis, we discuss the binary imputation Tort law determined, from another point of view to implement the rule of burden of proof allocation.
Keywords/Search Tags:bred animals tortious liability, producing elements of liability, hinder elements, primitive rules of burden of proof of allocation, special rules of burden of proof of allocation
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