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The Research On The Custom Breaching Tort Law

Posted on:2011-12-17Degree:MasterType:Thesis
Country:ChinaCandidate:W SunFull Text:PDF
GTID:2166330338975491Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
When a litigant doing some damage to the victim in a way of breaching the good customs ,he should compensate for the losses of the victim. This term has been considered a custom breaching tort law. From the perspective of the theoretical way, the custom breaching tort law has a limited using area and a specific goal of legislation as well as a corresponding functional specifications. Scholars had been mentioned those many times ago. However, as we look into the recently introduced Tort Liability law, there is no custom breaching tort law in it. It is a pity to me.The first destination of this paper is to verify that there has a turely demand of custom breaching law for our Civil Law system nowdays. To answer this question we must study the comparative foreign tort law first ,then drawing a conclusion that we do not have a custom breaching law in our current civil law system. Then from the civil law system and the history of the evolution of the tort law as well as the practical need of judicial practice need of China to try to provide the need of custom breaching law.The second problem of this paper want to solve is to explain the meaning of a "custom" and try to define the conception of "custom breaching" in our country. In this stage, we will compare the "custom" to other relative conception to explain it. To define that what is a "custom breaching", we will explain the external manifestation and the inner meaning of it.At the third part of this paper, we will try to show the dilemma circumstance of judicial practice of using the custom breaching law that will encounter and to describe the dilemma between legal but custom breaching and illegal but comply to the custom that puzzled the judge in judicial practice. Followed by this we suggest that we should emphasis the using of unofficial law system and pay attention to the evolution of newly solution by applying the unofficial judicial measurement. Finally, we may achieve the better goal. At last part of this paper, we hope that we can find the "infighting" between the local resources of resolve system and the Western so-called "rule of law" in our judicial and legislative process by studying the custom breaching tort law. Then try to explain we should think about that whether it is a right way to the rule of law by applying the rule of law. Ironically, to some extent that our traditional concepts of "non-defendants" expressed the idea of harmonious .How to balance the contradiction between the those is a major problem.
Keywords/Search Tags:custom breaching torts, "good custom", "custom breaching", unofficial law, unofficial judicial resources
PDF Full Text Request
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