Study On Legal Problem Of Joint Danger Act

Joint danger act is one of common torts. Legal provisions, scholar's viewand judicial practice of various countries do not unify. The author attempts tocarry on discussion to the relevant problems of joint danger act. At first, todefine the concept of joint danger act; secondly, to probe into liability basis ofjoint danger act; thirdly, to describe distribution of burden of proof for jointdanger act; finally, to query joint liability born by joint danger actors, and putforward to revised share liability. The author hopes that the discussion can bebenefit to construction of joint danger act legal system.The full text is divided into four chapters:The first chapter is about the question of the concept identification of jointdanger act. The author thinks that to understand the prerequisite of conceptidentification of joint danger act is to know the meaning of "joint "of it."joint"of joint danger act means that each danger behavior to damage resulthas related commonness, that is to say, commonness of danger, but not meansthat actors subjectively is common. Joint danger actor does not get in touchwith each other subjectively.Secondly, we should know what is danger behavior. The author thinks thatthe external characteristic of " danger act " is danger of behavior nature whichmeans the possibility of behavior of several persons causing others'legitimaterights and interests damage objectively, namely, the danger behavior of severalpersons may all cause damage result, behavior of not causing damagepossibility is not joint danger act. Inherent characteristic of " danger act " isthat inflictor can't be found. Joint danger act is only that the behaviors of anactor or some actors have caused the actual damage result in fact; thebehaviors of another part of person have not caused actual damage. Butbecause of the limitations of such respects as subjective understanding orobjective environment, etc, both victim and court are unable to confirm anyone or which part who is actual inflictor, which means putting emphasis onexhausting current technological means can't find the actual inflictor, but notmeans that it is difficult to find out or the cost is too high.The second chapter has probed into liability principle of joint danger act.The author thinks that joint danger act and other tort act have no different inliability principle, under the prerequisite of " filling in damage, exceptexemption liability ", all of them apply to fault liability, no fault liability andfair principle in different fields, different situations. Mr. Chengxin Peng hassuch a view that is " filling in damage, except exemption liability ", which isone principle that is said by the look of theory principle aspect, traditionalthree principle is said from practice operation aspect, one principle containsthree principles, one principle has leading function, three principles havesuitable meanings.The third chapter has expounded distribution of burden of proof for jointdanger act. In distribution burden of proof for joint danger act, providedplaintiff can prove that several actors have implemented danger behavior, andhave caused damage result, and if the actor's behavior has causality to damageresult caused, put to the proof by defendant. If defendant can prove that one'sown behavior does not cause the emergence which plaintiff damaged, he won'tundertake infringe compensation liability, otherwise infringe compensationliability should be undertaken together by several defendants.In the fourth chapter, the author doesn't approve that joint danger actorshould bear joint liability, and then put forward to revised share liability. Thelegal principle basis of joint liability should be that several persons havecommon fault, namely, common purpose or common fault, each actor bindsand becomes a whole subjectively. Such an inalienable one causes the samedamage result, each actor shoulders inalienable liability for damage result.Which actor do victim requires rights to, how many rights are required, whichdo not influence all damage to be filled in. In this way, joint liability is notcontradicted with the infringement law principle of " responsible for oneself ".Law makes joint danger actors bear joint liability, only because of whole ofdamage result. The damage result of joint danger act is the same damagecaused by a person or some persons, liability caused is only one. Liabilitysubject only is one person or some persons as one whole, but this kind ofwhole is inferred in law, relative to whole of liability of narrow sense commontort , common tort of clique members and common tort of abettor, helper, it isrelative . After all, it hasn't one subjective common purpose or jointnegligence that is bound into a integrative behavior that causes the samedamage result. If the same damage result causes the whole of liability thatrequire bearing joint liability, do common tort of without subjectiveconnection and liability relation of unreal joint debt bear joint liability? This isobviously unreasonable.The author thinks, with joint liability to joint danger actors, though whichmake damage compensation request right of victim has sufficient guarantee,and make the lawsuit simple and easy to do, but which has undoubtedlyaggravated the danger actors'liability, it is unfair to danger actors. The lawshould protect victims, but should not ignore the interests of danger actors inorder to protect victims simply, and should weigh the interests of both sides toachieve the fair goal. Only a person or some persons of danger actors areactual inflictor, the fault of other danger actors has not caused actual damageresult, let him or them bear most serious joint liability of tort liabilities,especially, when danger actors have only single fault or fault with the samecontent, they aren't actual inflictor themselves, let him or them bear so seriousjoint liability, which lose real justice. Revised share liability means that aftereach danger actor bear one's own liability share, if some actors among themare unable to compensate share that they should bear because of goingbankrupt etc., other actors with compensation ability should share the share...