Reflection And Review Of Equitable Liability Principle

This thesis mainly studies equitable liability principle combining the current laws. Equitable liability principle is in long-term controversy in our theory and practice, which is firstly owing to the illegibility of the legislation, Tort Law includes both the general provision and a few specific applications of equitable liability principle, and what is the relationship between them? The latter is the explanation of the scope of the former or merely several kinds of situations the former contains? This is not clear, so the discussion and debate of equitable liability principle always exist. Many scholars hold negative attitude to equitable liability principle, some people advocate that equitable liability principle is not an independent imputation principle, but only a damage sharing rule, more people worry that the application of equitable liability principle would harm the safety value of law. Supporters also advocate restricting its application strictly. The debate of the equitable liability principle among the scholars is mainly due to that the academic world has not gone deep into the spirit and connotation of equitable liability principle or explored the specific rules and reasons which can support equitable liability principle, the judicial practice also has no clear measures for the practice of equitable liability principle.The related theories are not mature which cause that the equitable liability principle cannot play its proper role in practice. Under this background, the paper tries to analyze equitable liability principle deeply from the theoretical level, discuss the connotation,the legal basis,the nature and the important value in the imputation system of the tort law of equitable liability principle again, on the basis of which I include specific application conditions and range, so as to provide some references to the legal practice. This thesis is divided into five parts, firstly introduces the evolution and the provisions in current laws of equitable liability principle,the disputes on the status of equitable liability principle in the imputation principle system of the tort law, reputes the negative disputes one by one and demonstrates the necessity of equitable liability principle as a kind of independent tort imputation principle from several aspects such as having independent application scope, independent value, civil autonomy characteristics, the unique Chinese legal cultural traditions and the developing trends of the tort law, then discusses the legal bases for equitable liability principle, holds that equitable liability principle starts up under the influences of the natural law. For tort law, individual freedom and social security are a pair of contradictory needing weighed, the cores equitable liability principle always focuses on in the process of value measuring are the spirits of justice and ration of the natural law. Meanwhile, the social benefit, community good and social joint relations are important bases of equitable liability principle too.The core of this thesis is the fourth part, through analysis of the existing laws we can find that our current civil legislations and related literatures studying equitable liability principle all advocate limiting the application of equitable liability principle strictly, but with the social development some new situations which laws has no provision must emerge out, the new circumstances cannot wait the law to modify to add one by one, as a responsibility principle, equitable liability principle should have such features, namely, by analogizing explanation of the content of equitable liability principle it can cover all cases meet the kernel of equitable liability principle. Therefore, through analysis, this thesis defines equitable liability principle as:The offender does not bear fault liability for the occurrence of the damages caused by infringement, but if the exemption would cause an unfair result that the victims assume the severe damage alone, in this case, according to actual situation, let the two parties share the loss. According to this definition, the thesis divides the application scope of equitable liability principle into the following types: 1, Slight fault causes serious damage. Divide it into two situations:First, although the violations of the perpetrator caused significant damages, reduce the perpetrator's liability for damages appropriately on account that the extent of his subjective fault is slight; the second is the perpetrator's violations resulted in serious damage, but the extent of his subjective fault is under the degree of the fault extent of fault liability principle, if exempting the liability it would be unfair to the injured party, so it should still exert the perpetrator certain responsibilities to avoid serious losses born entirely by the injured party alone.2, The natural ethics of human being and the need of keeping basic social security conflict. One is according to the human natural ethics, the laws forgive the infringement with fault to a certain extent. In particular, there are violations proceed from the nature of self-protection, such as urgent danger prevention; friendly behavior causes damages; the violations committed stems from the nature of pursuing his own benefits'maximum. The second is to meet the needs of maintaining basic social security, exert the people or behavior with no fault certain responsibilities. Specifically, the guardian's liabilities can be reduced if he has done his part to reduce the damages caused by the ward; a full civil capacity people causes harm to another when he has no sense or loss of control temporarily, not at fault, he should compensate the victim adequately according to his economic situation; the conduct implemented by the actor contains potential danger itself, but the potential danger can transform to real danger only when the occasional external factors assist, or the occurrence of the damage is a probability problem, in this situation, causing harm to another, the infringer should bear fault liability if he has fault, and he should also bear certain damage compensation liability if he has no fault.3, The compensation obligation of the beneficiary.4, The able party should take more losses.After that the paper indicates some problems should be noted in practice when equitable liability principle is applied. Finally, the key point of the paper is that like fault liability, equitable liability principle represents a kind of imputation eidos, the scope its spiritual content covers cannot be overcastted by listing singly, all kinds of cases in line with the concept should be applied on it. We can limit equitable liability principle into several major categories according to the nature of the case, that means all cases consistent with the nature of the category should be applied following it, but cannot limit it to several specific cases which will devoid the real value of equitable liability principle.The application scope of equitable liability principle in Tort Law of our country is too narrow and is not typed or systematized.In this paper I classify the application scope of equitable liability principle in type and system, so as to make the application of equitable liability principle clear, which is conducive to a more appropriate understanding of equitable liability principle and to promote the function of equitable liability principle to exert really.