On The Applicable Area Of The General Clause Of Tort Liability

Generally, there is a general clause in tort law in written law countries or regions. The general clause of tort liability differs from legal principle and specific clauses. The former is characterized by generality, openness, revealing all the details of specification, and value supplemented and so on. It functions as the basis of all claims (under the circumstances that only it exists), adapts to the social development, maintains the simplicity of law, ensures the law logic with its self-sufficiency and so on. The general clause of tort liability's own rationality for its existence is that it can solve such many contradictions as the infinity of tort case and the limit of the legal list, the changing life and stable legislation, requirements of the ration of law form and the limited capacity of human. But the general clause of tort liability is restricted when it is applied. It can be applied when there are loopholes in the law, new fact of tort happens and when it is still not applicable in the case of interpreting the specific clause by means of analogy, limitation of the purpose, expansion of the purpose.During the long-term social development, the countries and regions which have acted the general clause of tort liability have constituted many cases according to the general clause. In France, it has solved adjacent relations that are unnormally disturbed, the trespass on other credits, pure economic loss and other issues. In Germany, it has solved the trespass on general personal right, the trespass on sales right, the violations of the duty of general social security and other issues. In Japan, it has solved the trespass on claims, the trespass of sales right and other'violations trespass of interests which is worthy of the portion by law'. In Taiwan China, it has solved the trespass on mental freedom, the trespass on credit rights, the trespass on other claims by the third party, the trespass on spouse rights, the trespass on child labor when he works outside the hours provided by law and other issues. In China, before the'Tort Law of People's Republic of China' was enacted, such issues as the trespass of personal interests of the decedent, the trespass on claims by the third party, malicious actions have been solved by consulting to the general clause of General Principles of the Civil Law of the People's Republic of China. Cases that are constituted by the general clauses of countries or regions effectively fill the loopholes in law and solve infringement issues that can not be solved by specific clause.The Tort Law of the People's Republic of China is a major breakthrough for the traditional Civil Code and a great contribution to the world legal culture. A common view is shared that there are general clauses in the Tort Law of People's Republic of China. But among theoretical circle, there exist different views about which clause is the general clause of tort liability. Section 2 should be the general clause in the light of the legislative purpose and the theory of the general clause of tort liability. Section 2 bears the form of the general clause of tort liability, the comprehensiveness of means of duty, a variety of basis of liability fixation. However, flaws in Section 2 are obvious. It is'a blank clause', constraining the freedom of movement and lacking logic, so its position as the general clause is not fully justified. Section 2 should be perfected by the substantial embodiment of openness, the different treatment between civil rights and interests, the supplement of reasons for liability fixation and other factors, so that it can become a well justified general clause and plays its proper role as a general clause.