Investigations On Joint Dangerous Act

Joint dangerous act institution originated from"actio de effuses et deiectis"of ancient Roman laws, and it was officially established by the German Civil Code. Although in judicial practice, cases about it are few, its unique value merits us to research on it. Tort law of the People's Republic of China will be implemented soon, this is the first time for our country to establish Joint dangerous act institution on basic law. China's basic law has set up this institution for the first time, from this we can see the importance of this institution. However, our research on torts is still weak now, there still exists many disputes about joint dangerous acts, and this is not conducive to inconsistency of judicial practice. This dissertation intends to make an in-depth investigation on joint dangerous act by means of comparative and positive analysis. Additionally, the dissertation deals with some basic theoretical controversies on joint dangerous act in order to make it get more clear and perfect, serving as some guidelines for judicial practice, protecting and maintaining the consistency of legal practices.This article has three chapters, Chapter one is mainly on the basic theories of the joint dangerous act. Section One introduces legal provisions, theories and cases of Joint dangerous act in the common laws, and continental laws, the evolution process in China. The author compared the differences between China and the other countries'institution and has summarized some useful intuitions which merit us to learn. Section two analyzes the differences between Joint dangerous act and other similar conceptions. The author has cleared the distinction between them. Section three investigates on the constituent elements of Joint dangerous act, and this is the key point of this Chapter. Scholars have different viewpoints on subjective and objective elements, causation of joint dangerous act. The author analyzes question about the constituent elements by focusing on the principal contradiction of different theories, then makes comments on them. Chapter two discusses the imputation basis of Joint and several liability. Sectionone introduces two ways of liability for joint dangerous act and related theories, and explains the reasons why our country should stick to Joint and several liability. Section two introduces the theoretical basis of Joint and several liability, the author proposes the basis of Joint and several liability from many aspects.Chapter three introduces defense reasons for joint dangerous act. Section one introduces different theories about whether the tortfeasor can release the liability , and introduces the transformation of defense reasons in China. Section two analyzes the effect of victim's release of one tortfeasor or a part of wrongdoers, describes two theories about it and then makes comments on them. Section three analyzes the effect of victim's fault to the distribution of liability, and illustrates the way to distribute the liability when the victim has fault.