Argument On Exemption Excuse Of Tort Liability

The purpose of Law of Tort is to balance the benefit of conflicts in the society. One of the methods of balancing is to compensate the loss and punish illegality when infringing acts happened. This question is about liability to damages and punishments, which involves liability and remit. If only focus on one of the two, the balance of law is going to be slanting. Thus, both liability and remit are important to the law. And the relationship between the principle of liability ascription and deraignment excuse is the key of this issue. This relationship must be done well to realize the purpose of liability system. The principles of liability ascription and deraignment excuse are not discretionarily stipulated. From the point of historical view, they influence each other since they come into existence. On the one hand, principle of assigning liability decides tort responsibility; on the other hand, deraignment excuse plays a role of confining assigning liability to reparation the possible enlarged liability scope, resulted by the simplex principle of assigning liability and the composing of liability. Systematic study on deraignment excuse has few been done in the foregone law study. As the Property Law finally came out, legislation of infringe liability is urgently needed. Thus, the study on deraignment excuse will have significantly theoretical and practical meaning.This paper will be divided into five parts. The concept, the legislative mode, the status and the main type of deraignment excuse will be presented respectively. The legislation proposal to our country's deraignment excuse of tort responsibility is expounded in the last part.The concept of deraignment excuse will be discussed in this first part. First, through analyzing the relationship between deraignment excuses of tort responsibility and composing of liability, it can be conclude that deraignment excuse is counterwork to composing. This theory will not exist without the composing. Second, some compares has been done between several concepts. The concepts of deraignment excuse and absolution excuse is firstly compared. The difference and connection of deraignment excuse and illegality preventing are definitely pointed out.The second part mainly clarify legislative mode of deraignment excuse in both Common Law System and Case Law System. The legislative modes in the laws of England, America, French and German are presented one by one. And then, the comparison between two law systems is concluded, the advantages and shortcomings of using it in the process of legislation is found out. Thereby, our legislative mode should be synthetically considered.The third part will discuss the status of deraignment excuse. By analyzing the history of deraignment excuse, it will be shown out that the principle of liability ascription and deraignment excuse is a supplement to each other. Liability decides deraignment excuse. Liability should adopt doctrine of fault liability and principle of strict liability. Doctrine of no-fault liability is not independent. Considering the relation of deraignment excuse and liability, deraignment excuse is a defense to liability and it is not one part of tort liability. Deraignment excuse has independence characteristics.The fourth part will analyze the main type of deraignment excuse. Analyzing the composing of tort liability results in that traditional points makes the deraignment excuse kept outside of important composing and has self-contradictions. And then, the relation between the tortious law and the criminal law is analyzed to bring forward that constitutive requirements of liability should include propriety, illegality, and responsibility. In the end of this part, the representative types of deraignment excuse are discussed.The fifth part will show the shortage of our current law refer to deraignment excuse and make some proposal in legislation. Present law has few types of deraignment excuse and keeps unreasonable and unfair. The content is too simple and there are conflicts exist in the different legislations. Proposals are presented in the succeeding contents. The new law-making about deraignment excuse should overcome all of those disfigurements. The Ethiopian legislation mode will be mentioned, which can be used as one reference.