On System Of Negligence Offset

It is a regulation in responsibility assignment based on tort law, its essence is that, when victim also exist the negligence to the caused and injurious consequences, how to distribute injurious responsibilities between the both clients without fear or favor. As a raro item in tort law which directly defines the responsibilities distributing to the both clients, system of negligence offset provides a good path for reasonably distributing liability for tort and balancing the both clients'benefit. However, because that, in our country the tort law specializes more in punishing the injuring party and compensating the victim in theoretical and practical circles, in the most cases system of negligence offset could be decreased according to the circumstances into consideration under the injuring party assuming the all of responsibility, therefore, positive meaning has been forfeit in equitable interest. In fact, tort law has the guidance effect without inobservance. You know, the both clients stand for the different interest group. When liability for tort is in promoting or protecting a group interest, it must be loaded to the interest group. Over-protection to Party A must be to limit the Part B's free, thus the behavior to all the society would create influence.As a result of the regulations of system of negligence offset being too general and principle in law and judicial interpretation, real life is infinity diversity, increasing difficulty in operation in jurisdiction practices. This thesis is started from the basic theory of system of negligence offset; the applicable issues on tort law for system of negligence offset have been described preliminarily through analyzing its essential ingredients.This thesis is divided into three parts. The first part is a brief introduction to system of negligence offset. in this part, the concept and the characteristics of the negligence offset have been briefly introduced and clearly explain that, negligence offset is a kind of system , which is to mitigate or let off compensation liability for damage of the obligor to compensation in case of victim having the negligence in causing damage or expanding damage result. system of negligence offset, three characteristics include that: the victim be subjected to loss because of the other persons'torus, victim having the negligence in causing damage and expanding damage result, legal effect of the negligence offset is to mitigate or let off compensation liability of the injuring party.analyzing the theoretical base created of system of negligence offset, and brief analyzing and evaluating the following: punishment theory, damage control theory, Cause-and-effect relationship theory, theory of protecting injuring party and liability for negligence, and clearly explain that :the theoretical base owned by system of negligence offset in the final analysis is law spirit of fair and the principle with all sided negligence for tort law. From the viewpoint of history, for the course of history and its system of negligence offset, have been done the preliminary review. Analyzing theories of negligence recovery by civil law system from Pond's regulation to Pandectists, the system development is altered from the relative regulations of Roma law to the civil codes which belong to civil law system such as Germany, French, Argentina, Italy and Switzerland, etc. against Pond's regulation; analyzing a progress towards legislation from the regulation either whole or none of Europe and America system to final opportunity regulation, and to Comparative Negligence Rule. Analyzing progress towards legislation for system of negligence offset in our country.The second part is to analyze the essential ingredients for the system of negligence offset, and support the view of four essential ingredients. Firstly, victim must be negligence. Victim's negligence includes victim on purpose and victim negligence. When do affirmation of victim on purpose, It must also be noted the relationship between victim consentience and victim on purpose, they often exist the coincidence relationship, and have obvious difference. For the nature of victim negligence there are various of view in the theoretical circle , victim negligence of negligence offset include two cases:1,the victim violates the legal duty of care; 2, the victim doesn't notice only rather than violating the legal duty of care. according to the difference of care grade, negligence is divided into lata culpa, the detailed culpa levis and abstract misdemeanor; In our country Supreme People's Court takes victim negligence to divide into two types: ordinary negligence and gross negligence. Secondly, victim's behavior must be the reason which cause damaging or expanding. Thirdly, victim's behavior should be a misfeasance when it is check if constitute the negligence offset, it doesn't require no matter what victim's behavior is illegal, only victim's behavior is misfeasance. The misfeasance so-called can be positive action, also be negative nonfeasance. Fourthly, victim must have qualifications of negligence offset. the following theories in the theoretical circle have been evaluated: the theory of responsibility, the theory of attention ability, the objective theory and logic recognizing ability, etc. In negligence offset victim is required to have ability in negligence offset; this ability should be recognizing ability, i.e. the victim has the cognition that behavior may lead the result which damage own interest. .The third part is to think about the applicable issues of system of negligence offset on tort law. It is focused at three questions: the first is range of application. In negligence offset although the victim's negligence doesn't be limited directly at the victim's negligence, but it cannot be over-extended as: only any the third person connected to the victim has negligence, in this situation, they would be remained to the victim's negligence and perform negligence offset. in negligence offset the range of the victim should pay attention to two cases: in the first case, the person, who has recognizing ability and is a person having no cap or in limited capacity for civil conduct, when the person has negligence, in this situation it can be considered to perform negligence offset of victim negligence. In the second case, when a employer is suffered from the property damage because of employee's negligence in performing work, negligence of the employee can be considered as negligence of the employer, thereby he liability for damage of the injuring party would be mitigated. But, a employer is suffered from personal injury, negligence of his employee cannot be considered as negligence of employer to perform negligence offset. The system of negligence offset is analyzed as a emphases, the following is applicable, either it is in general tort field that take fault liability as criterion of liability, or the special tort field that take liability without fault as criterion of liability; The second is manner of application. When the norm of scope of cover applied to the client is required to define, in theory there are three theories, i.e. the theory of comparative reason, theory of comparative fault and eclectic theory. Integrated to consider scale of the reason and the eclectic theory in the degree of fault, the above become the main theories in checking client's scope of reasonability in negligence offset, and they have been agreed by the most scholars. Which one is the main for fault and reason factor, in our country; the scholars hold two difference views. Combined with the regulations of our law, when perform negligence offset; which one is the main should be difference according to applicable criterion of liability. In the fault criterion of liability, apportionment of liability should be determined according to scale of the fault between injuring party and victim; in liability without fault, it should be compared mainly according to the reason power of fault behavior against causing damage between injuring party and victim. on analysis of fault in fault liability tort case, it should be analyzed by the situation combination according to the following order between injuring party and victim: gross negligence and ordinary negligence; on comparison of liability without fault of infringement case in reason power, in jurisdiction practice, scale of reason power should be determined according to two sides: from main reason to secondary reason, from immediate cause to indirect cause. The third is the applicable thought to system of negligence offset in jurisdiction practice, it describe the questions required to pay attention for system of negligence offset in jurisdiction practice.