On The Criteria Of Negligence Determining On Tort Law

This thesis aims at discussing the criteria of negligence determining on tort law through comparative,historical,and positive analysis,and the thesis is divided into three parts on the thread of problem raising,analyzing and solving.The first part differentiates and analyzes the fundamental theoretical disputes on the negligence and its criteria.After analyzing the disputes on theories of subjective negligence and objective negligence,theories of the subjective criteria and the objective criteria of negligence,it points out that the research on the criteria shall be based on the traditional system of liability for negligence in civil law and that we should insist on the subjectivity of negligence concept and borrow merits from objective criteria of negligence determining to remold classic negligence theories.Grounded on comparative analysis of legislation,precedents and doctrine about the criteria of negligence in the main countries of continental law system and common law system,the second part indicates that the historical change of the criteria of negligence is the results of adjustment of liability for negligence based on social need.This process revealed the art of balancing freedom and security values of tort law,and the contradiction between logic and values which caused by hysteretic nature of statute law.Due to the difference of tradition of law system,every country chooses its own way to deal with the problems above.When drawing lessons from others,we should not only analyze whether the institution or pattern works well in its own states,but also consider whether it will be feasible in our country.The third part commentates on the problems of criteria of negligence determining in our country,and then puts forward some feasible suggestions to Legislation and Judicature.Because of lacking definite rule of negligence and its criteria in Legislation,there is no uniform and operational standard in judicial practice.So we should insist on the subjectivity of negligence concept and objective criteria of negligence determining,and stipulate the meaning the negligence in Legislation,The Supreme People's Court can further enact the criteria in details in form of judicial interpretations,and then establish the uniform operational criteria to determining negligence.The thesis draws conclusion in the end:design of the criteria of negligence determining system in our country should be based on our national conditions,be on the principle of implementing the basic functions and principles of liability of fault,choose appropriate mechanism to coordinate the inconsistency between legal certainty and flexibility. Concretely speaking,we should stick to the combination of the subjectivity of negligence and objective criteria of negligence determining,stipulating the meaning of negligence and setting the principle criteria of negligence in Legislation,enacting the criteria in details in form of judicial interpretations,and then establish the uniform operational criteria to determining negligence.