Making of a comprehensive view on the history of the tort law, we can find out: with the development of the society, the economy and the morality, the liability in tort law also develop from fault liability to fault-presumption liability, then to no-fault liability and equitable liability. The no-fault liability is always disputed by people, because it acts against the basic concept"no fault, no liability". This essay demonstrates from the concept of the fault, then analyzes the concept of the no-fault liability and its structure. By introducing the historical development of the no-fault liability, the writer discusses the theoretical bases of it; the writer also compares the no-fault liability with other liabilities in tort law. Finally, the writer arrivals at a conclusion: the no-fault liability is not one of the liability principles of our tort law.The first part consists of the concept and the structure of the no-fault liability. About the concept of fault, there are three kinds of theory: the subjective, the impersonal and both the subjective and the impersonal. In fact, fault is subjective, including purpose and negligence. The no-fault liability doesn't indicate that one should burdens liability if he or she has no fault; it means if the damage has happened, the actor should burden liability whether he has fault or not. Before discussing the structure of the no-fault liability, the writer analyzes the relation between the fault and the irregularity. The conclusion is that: the fault doesn't contain the irregularity, the irregularity is not a factor of the no-fault liability's structure. Causation should be one of the factors and also the action.The second chapter pays attention to the theoretical base of the no-fault liability. The no-fault liability came into being in the end of the 19st century when the industrial accidents, environmental accidents, and traffic accidents happened frequently. On the whole, the birth of the no-fault liability attributes to the development of the productivity and the production relations. Concretely, the danger the action bring is the uniform theoretical base of the no-fault liability. Meanwhile, the employer's liability is not in the range of the no-fault liability.The third part compares the no-fault liability with other liabilities which are always confused. By comparing, the writer draws these conclusions: the fault-presumption liability also belongs to the fault liability, the similarity between the no-fault liability and the fault-presumption liability is the conversion of the burden of proof. The result liability is in the same with the no-fault liability on the surface. In fact, the result liability is the outcome of the primitive society, now it had been abandoned by the modern society; and the no-fault liability is the outcome of the civilization, it fetches up the shortage of the fault liability. Dangerous liability and strict liability all belong to the no-fault liability,the dangerous liability is the appellation of the civil-law system, the strict liability is the appellation of the common-law system. In a general way, the range of the dangerous liability or the strict liability is smaller than the range of the no-fault liability. The equitable liability doesn't equal to the no-fault liability. When all of the parties don't have fault, we apply the equitable liability, but the no-fault liability is applied in the situation that the actor doesn't have fault. And the range of the no-fault liability is limited by the legal provisions, but the range of the equitable liability is not.The forth part is the important part of this paper. This part researches for the status of the no-fault liability in our tort law. Someone deny that the no-fault liability is in existence of our tort law because of the exemption. Firstly, the no-fault liability is one of the liabilities of our tort law. There are exemptions or not is not a criterion to define the no-fault liability. Otherwise, exemptions can be in no-fault liability. A large number of counties set exemptions in their no-fault liability. Secondly, the no-fault liability can't be a liability principle of our tort law. That is because the no-fault liability is set by legal provisions, and the appliance of it is limited. What's important is that the no-fault liability have no function to prevent and educate. Furthermore, the majority of countries in the world don't treat the no-fault liability as a principle.Lastly, the writer point out that not only the fault liability is a principle in our tort law, but also the equitable liability. Above all, the equitable liability is not conflicting to the no-fault liability, and then the range of it is abroad. Furthermore, the situations in which we should apply the equitable liability can't be limited by the legal provisions.
|