A Research On The Civil Liability Ability For Natural Person

Few countries have the concept of civil liability ability in their Civil Codes. This concept, a permanent controversial topic in the theory of Civil Law, covers personality, right ability, behavioral capacity, fault, fair responsibility, vicarious liability, liability, damages, and some other issues of every aspect. It can be viewed as the spirit of Tort Law. Till now, domestic scholars have still not arrived in a unified viewpoint on the civil liability ability. This thesis offers, with reference to the existing theory and legislations of other countries, a research on the relative problems of civil liability ability in order to use the little to get the big. This thesis can be divided into four parts:In Part-1, it is about Regulative method and legal definition for the civil liability ability. This part introduces the various regulative methods consisting in the Civil Code of Switzerland, Japan, Russia, Germany, Chinese mainland, Taiwan of China, and the Macao region, summarizing their similarities and differences, and analyses the definition of civil liability ability in Chinese mainland and Taiwan of China. Two different kinds of legislative technologies have been manifested in each regulative method. One is to view a series of generalized concepts-judgment ability, meaning ability, identification ability as the abstract standards in order to determine whether the doer possesses the liability ability; the other is to determine whether a natural person has the liability ability through taking a fixed minimum age as the standard. Although, seen from the law-applicable result, these two methods reach the same goal by different routes, a question has been raised—although there are different descriptive vocabularies, we should strive for a unified cognition of liability ability. Subsequently, after analyzing some opinions of Taiwan scholars, the thesis holds that the viewpoints on the relation between basis of liability ability and behavioral ability as well as the one on the association between fault liabilities are consistent in Taiwan's academia. They all consider that the basis of liability ability is what we called meaning ability and identification ability. Although liability ability has been covered by behavioral ability, the established behavioral ability only refers to the legal behavioral ability, not including the liability ability. Liability ability, being used to determine whether a doer has the deliberate act or with negligence on the basis of ability of identification, would be meaningful only in the context of the fault liability principle. However, the attitudes of Taiwan's scholars may also divergence in some issues. First, there are divergences on what is the object of identification—some think that it is the result of behavior that we make cognition of; while others hold that the object is the illegality of behavior itself. Second, different opinions on the significance of liability ability—some hold that it is an important element used to force the doer bear the tort obligation; while others think that it is just a qualification for bearing the damage obligation. Subsequently, the thesis presents the definition of civil liability ability, it holds that the natural person's civil liability ability, which refers to the natural person's behavior of discerning and controlling himself, is in essence the ability of civil tort. Thus, it is a kind of qualification and ability to make the doer bear the civil tort liability for the consequences of infringement.In Part-2, it is about the in-depth analysis of the civil liability ability. This part at first introduces many theories about the nature of civil liability ability, including theories on tight ability, the quality of independent, the inclusive behavioral ability, the behavioral ability of tort, the ability of illegal act, the meaning ability, the ability of identification, and on the fault ability. On the basis of the objective evaluation of these theories, the thesis, after analyzing the choice on the notion of the civil liability ability, holds that the civil liability ability can be defined as follows: an identification ability of being aware of the possible or inevitable damage in accordance with the condition of the doer's intelligence and mentality when acting. This definition is a subjective condition used to judge whether a doer has fault or not, and whether he possesses the subjective imputability under the premise of the applicable principle of fault liability so as to further judge whether this act belongs to a tort. It contains following key points: (1) The basis of liability ability is what we called identification ability whose requirement for the condition of intelligence is lower than that of meaning ability-a basis of behavioral ability and its content is the condition of the doer's intelligence and mentality when acting. (2) The judging standard of the liability ability is associated with identification ability. The referring elements used to measure the condition of intelligence only have relationship with the age, not with the property status. (3) The birth and development of the liability ability system originate from the liability principle of fault, thus it can only play its role in the field of fault liability. The problem of liability will not be taken into consideration in the application of the non-fault liability principle and the consequence liability principle. (4) The function of the liability ability is to judge that whether the doer has fault and thus has acted a tort has no necessary link with the ultimate commitment.In Part-3, it is about the analysis on the function of the civil liability ability. This part holds that, the confirmation of tort and the identification of the ultimate commitment of tort liability are two successive steps, but they are not totally identical in contents and purposes. The liability ability only resolves whether a fault is confirmed without involving the tort liability, especially the taking of damage liability. It also suggests that the civil liability ability system is mainly used to resolve the problem involving the tort committed by a minor, presenting two questions on this kind of tort—whether the protection of the minors is the primary value orientation of law? If we request guardians to take the tort liability for the reason of protecting the minors and the injured, should this kind of liability have a limit? Then this thesis respectively gives a detailed analysis on these two questions.In Part-4, it is the discussion on the criteria of recognition and the judging method. This part holds that, now that the essence of the civil liability ability is a kind of a tort perpetrator's cognitive ability or identifying ability of foreseeing the occurrence of damage, and its function is to judge whether the perpetrator has fault, thereby have a tort act, the judging standard will be the intellectual and mental condition without link with the property condition. As far as the judging method being concerned, this thesis thinks that, the approach of the Portuguese Civil Code is worthwhile referring to. That is, the age and mental condition are general standards on the criteria of recognition, but there are two exceptions. One is that although children under a certain range of age are usually presumed as no-fault, the victims may seek the evidences capable of discriminating the consequences of their behaviors at the time of acting to overthrow such a legal presumption; similarly, children above this range can also prove that they were not able to foresee the possible consequences of damage to rebut the presumption of legislation. Another one goes like this, adults under amentia caused by drinking, the use of narcotic drugs or other means should take the liability ability.