The Researches Of Liability's Some Problem Of Tort

The liability of tort, is the civil liability that infringer must undertake who infringe another legal right. The type of tort added and effect of damage extended, make the tort's imputation develop from single liability of fault to liability of fault, fault inferred, no-fault and fair responsibility; the scope of compensation develop from compensation of property damage to both compensation of property damage and compensation of mental damage in modern times and contemporary times. The theory of tort's liability enriched. This article tries to research some tort's theory of foundation, and supply guide to practice. Imputation's Principle of Tort's liability Imputation's principle of tort's liability is the basis and standard that someone undertakes tort's liability. The civil law of our country established liability of fault, fault inferred, no-fault and fair responsibility. The writer thinks liability of fault is the basis of imputation system of tort, and essential principle. The core of responsibility of fault inferred is also "fault", and it only having inversion of proof's burden. So it should belong to liability of fault. No-fault is the new method that meets science development and society improvement, and it is also a kind of imputation principle. The liability of fair responsibility doesn't have the general applicability as a principle, so it's only a method of imputation, not a principle. We need to note those when the imputation of fault is applicable: (1) we should eliminate this case doesn't belong to special tort, that means law don't make the special provision; (2) the inversion of proof's burden of fault inferred, is the inversion of subjective factor, not all factors; (3) the fault of no-feasance, need infringer have the legal duty of feasance, or the duty that continue to fulfill because of his former behavior. About the liability of no-fault, we need note that not the all behavior result in damage and must undertake the liability, the civil law still establish defense cause to infringer, such as causation negative and victim's intention etc. Although fair responsibility don't apply extensively, for some innocent victim but suffer the serious losing, it have the very important succour function. There is standpoint think that the imputation system of infringement meets the challenge in the modern society, such as the scope of no-fault's liability extend, the insurance system make liability undertake scatter more etc. But writer thinks that the tort law contains certain flexibility. There is the dissimilarity in development between developed country and our country. Our current imputation system is applicable to our society still, so we should insist fault responsibility, no-fault responsibility for principle, fair responsibility for complement. Composing Factors of Liability of Tort Now, for composing factor of liability of tort, there are "four factors"and "three factors"on the academic theories. Their controversial focus is whether "illegality"should become an independent factor or not. The writer approves "three factors", and thinks "illegality"should belong to "fault", and then the composing factors of liability of tort include: fault, damage fact, and causation between behaviors of injure and effect of damage. Constitute the judicatory of factors to affirm the liability of tort, we need to notice: (1) For fault, the writer's concept is: For this intention and mistake for manifestation, be subjected to the doer's consciousness of subjection, but is law and morality condemnation of objective appearance. While affirm fault, we should put together subjection and objection, find doer's duty of attention reasonably, then judge behavior's intention and mistake. While affirm attention duty, we will judge the ability of attention that the doer should have on the basis of the society's level of development, and judge whether the doer should have the special duty of attention or not. (2) For mental damages, the writer agrees that the Supreme Court's explains of indemnity of mental damages, and suggests that the Supreme Court often release the typical case. Moreover, the writer recommend "Hand Formula"(B