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Research On The Principle Of Liability Of Tort

Posted on:2008-11-16Degree:MasterType:Thesis
Country:ChinaCandidate:H Y MaFull Text:PDF
GTID:2166360212993085Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The doctrine of tort liability definition is abstracted from various specific liability definition processes. It is the reason, criteria or decisive factor on which the definition of one's responsibility is based in a certain type of infringements. It reflects criterion and orientation of legal value and occupies an important position in tort liability law. The author believes that the study of the doctrine of tort liability is of great significance to theoretic research, judicial practice of settling infringement disputes as well as legislation of tort liability law. Commencing from the perspective of construction and application of doctrine of tort liability, the thesis, which is divided into five parts, explores the improvement of tort liability law legislation in China.Part I is foreword. The function of tort law fully reflects the value of modern law system. The establishment and improvement of China's tort law has become one of the most important tasks in building a socialist country ruled by law. China ought to construct a comparatively independent tort codes from the perspective of infringement liability law. The research of infringement liability doctrine is not only the core of tort liability law research but also of great importance to judicial and legislative practice.Part II is the general outline of infringement liability doctrine. It firstly expounds the concept, important position, historical evolution in the two law family and diversification trend of tort liability. Then, it draws a conclusion that China should establish a dual system of fault liability and non-fault liability based on the comparison of different ideas and theories of scholars home and abroad.Part III is the specific exploration of each tort liability doctrine. In this part, the author explores and discusses the doctrine of fault liability, non-fault liability and "fair liability" argued by some scholars.The section of fault liability, besides explaining concept and character of fault liability and tracking its historical evolution, emphatically analyzes the value of fault liability in safeguarding freedom, guiding, controlling and equalizing justice. It also analyzes and criticizes related "fault presumption liability". It believes that fault presumption is only a means of fault prove in fault liability application and has not diverged from the track of fault liability, which is only one of the evidence rules rather than a independent doctrine.The section of non-fault liability, besides introducing its concept, character, historical evolution and function value, emphatically argues that non-fault liability should be an independent doctrine in tort liability law. Then, it analyzes and animadverts on the doctrine against non-fault liability. Afterwards, it carries a comparison and analysis between the doctrine of non-fault liability and strict liability. The author believes that there is no substantial difference between them.The "fair liability" section, based on its historical evolution as well as analysis and criticism of specific environments of application, concludes that "fair liability" should be defined as a mean of sharing loss under the fair principle in civil law other than an independent liability doctrine in China's tort liability law.Part IV is mainly about the application of doctrine of liability. The part of fault liability application firstly analyzes the core of fault liability—the concept of fault and its judgment criteria. Then, it discusses several complicated faults such as mutual fault, blending fault, fault of third person and their effluence to liability doctrine. In the part of non-fault liability application, combined with the China's General Principle of Civil Law, judicial interpretation of the Supreme Court and the latest academic research achievements, the author introduces four categories of typical violation of non-fault liability, etc product liability, environment liability, employer's liability and replacement responsibility with the focus on the in-depth analysis in the perspective of liability doctrine and constitute components.Finally, the author draws a legislative outlook and brings forth a proposal to the legislation pattern of China's tort liability law, etc an tort liability law system in which the binary liability doctrine acts as the basis and general items is combined with typical regulations.
Keywords/Search Tags:Fault liability doctrine, Fault presumption, Non-fault liability doctrine, Strict liability doctrine, Fair liability
PDF Full Text Request
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