Study On Gradation Of Fault In Torts

Since the beginning of Roman law, the degree of fault is the meaning of fault liability. In modern times, the Principles of Responsibility in Tort Law and the diversification of the core functions of the Turn of tort law, fault, "objective" and the principle of full compensation for the establishment of the degree of fault in tort completely ignored the role of the field. Traditional civil law that the rights of tort law to target relief to the principle of full compensation, the degree of fault and the theory of its victims to consider the fault of the infringer to establish the extent of tort liability and responsibility of the establishment of easily lead to an unfavorable situation for the victim relief Therefore, the degree of fault in tort law has little value, and the "degree of fault" itself is a highly subjective concept, and its criteria with the fault of the "objective" trend is also contradictory, since the fault of modern tort law "objective of the "inevitable, then also no need to go into the perpetrator and the victim's degree of fault. However, we look at a unified European Tort Law reports and research related topics, search the second American tort law, the Third Restatement, combined with our latest "Tort Liability Act," point of view, modern tort law since the country filled in to the detriment of the core function also needs to consider the fault gradually established a degree of contributory negligence, the victims fault, punitive damages and moral damages compensation system. "Freedom" and "Protection" is a tort never need to face value of the two conflicts, arising from the beginning of tort law need to find this balance of interests between the two values. Degree of fault tort liability not only for the establishment of special have a significant impact, and degree of fault or damage to a fair distribution of important factors need to be considered. The establishment and scope of tort liability is the infringement Elements to determine the result of comprehensive consideration. Causal relationship between the degree of fault interaction and tort law as an important factor in determining the scope of responsibility. Degree of fault in modern tort law amended its cold side of the victims, but their joint and several liability on tort law, the effectiveness of exemption clauses and the insurance payments are irreplaceable value. Therefore, the re-search of relevant laws and regulations of the degree of fault in terms of its shortcomings, build a scientific theory of the degree of fault on the implementation of the law of tort liability, there is of great practical significance.This paper uses a comparative study of historical analysis, sociology and other methods on the field of tort comprehensive analysis of the degree of fault, and based on the degree of fault was common sense and re-differentiate between the various degree of fault relations and the special significance was defined.This addition to the introduction, divided into four parts, a total of three thousand words.The first part of the dispute over the need for distinction between the degree of fault. Firstly, from the degree of fault in tort disputes without the necessary distinction between starting from the non-essential and necessary that the two opposing camps that were listed and views of their representatives, and advocates of the reasons for its factions.The second part of the value of distinguishing the degree of fault. On the one hand, face against the claims of reason to distinguish between the degree of fault, point by point rebuttal of its grounds, the opposite argument from the degree of fault and tort law, the right to relief location, fault "objective" and the pursuit of justice tort cases results were not contradictory. On the other hand, from the front to demonstrate, respectively, generally speaking, in the degree of fault in modern tort law has an important value, the composition of its tort liability and damage to the scope of the determination of the responsibility to use the band, as well as the effectiveness of exemption clauses insurance payments and the development of insurance law has great significance can not be replaced.In part three, the distinction between the degree of fault conditions. The first is from a comparative law perspective, has been investigated since the Roman degree of fault in tort distinction between the situation, citing France, Germany, Spain, Belgium, Britain, the United States and other countries in the degree of fault on the distinction and the related situation. Followed by the distinction between the degree of fault of China carried out the clean-up summary of laws and regulations, and the control method table format of the degree of fault on the meaning of the term and a brief analysis presented on this basis, the extent of our current theory of the two fault most inadequate.In part four, the degree of fault of another distinction. Combined with our existing laws, regulations and judicial interpretations of the distinction between the degree of fault and the efforts made, and then from France, Germany and other countries, the discussion on the degree of fault and judicial practice, the proposal of building a scientific theory must be the degree of fault in tort theory has been on the basis of abstract and realistic value of the degree of fault realistic terms. Thus, the fault mainly divided into two types of intentional and negligent shape, its different degrees and according to the law of tort can be of significant value to its further division. Deliberately based on their degree of malignancy can be divided into subjective and general malicious intent. Deliberately in the criminal law and tort law have different definition of standards, the intentional tort premised on the illegal nature of knowledge, but only intentional criminal liability on the intentional, unlawful sexual awareness that the error still constitute a deliberate criminal law. The fault according to the degree of breach of duty of care can be divided into gross negligence, general negligence and minor mistakes. Gross negligence in tort is a very important degree of fault terms are in most cases simultaneous with the intent, it is "equivalent to willful gross negligence," said, but in order to constitute the elements of intentional tort liability for the case of gross negligence and still the need to distinguish between intentional.