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Theoretical Research On Joint Tort

Posted on:2008-01-21Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhangFull Text:PDF
GTID:2166360215963301Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Constitutive requirements and legal consequence designed for tort by single person are provided in law of tort. In civil law countries and regions represented by Germany, joint tort is provided as a particular type of tort. It is characterized by more than one infringer and joint of infringements. There have been conflicts about the meaning of joint through all ages. Under the theoretical influence, judicial practice varies in different cases.This paper is written to make a theoretical research on joint tort. The paper analyses different theories and practices on joint tort, examine the rationality of provisions in judicial interpretation and establish the constitutive requirements and legal consequence of joint tort.This paper consists of four parts.Part one discusses conflict opinions on joint tort. A theory holds that joint tort occurs only when people act in concert. A divergent theory holds that when more than one act constitute proximate cause of one indivisible damage, they are joint torts. Some Chinese scholar advances the theory of reconciliation. After making a deep research on conspiracy and causation, the paper comes to a conclusion that it reasonable to make both joint tortfeasors and concurrent tortfeasors jointly and severally liable for the indivisible damage, and joint tortfeasors for divisible damages as well.Part two discusses typical practices in continental law system and Common law system. In Germany, although joint tort only means act in concert, more than one person who are responsible for one damage should bear joint liability. In Taiwan and Japan, joint tort involves not only act in concert, but also independent acts which make a indivisible damage. In the USA and the UK, both joint tortfeasors and concurrent tortfeasors are jointly and severally liable for the indivisible damage, and joint tortfeasors for divisible damages as well. The paper comes to a conclusion that whether it constitutes a joint tort is a sub process. The purpose is to establish the liabilities of several infringers.Part three analyses a judicial interpretation made by Supreme People's Court, which makes a difference between direct combination and indirect combination, and apply joint liability in the former situation and proportional liability in the latter situation. Actually, it is not reasonable to make this difference, because there is no substantial difference between these two situations.Part four establishes constitutive requirements and legal consequence of joint tort. As a particular kind of tort, infringers should act in concert. Several infringers act independently to make a indivisible damages should bear joint and several liability. However, they do not constitute joint tort, because there are great differences between them in several aspects such as foundation of liability, constitutive requirements and effect of liability.
Keywords/Search Tags:joint tort, joint fault, Causation in common, joint and several liability
PDF Full Text Request
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