Investigations On Joint Dangerous Act

Joint dangerous act system originated from"actio de effuses et deiectis"of ancient Roman laws, so far it has been adopted by many countries such as Japan, Greece and Italy since it officially established by the German Civil Code in 1900. However, up to now, the legislating of joint dangerous act still has been a big blank in the torts field of China. Despite scholars have made a great deal of exploring on it, we have very inconsistent understandings, especially about the attribution of joint dangerous actions, constituent elements, requirement exempting. On the other hand, in our current trial practice, the courts commonly use their own theories to make decisions which leads to the confusion in the trial practice. This dissertation intends to make a systematic, comprehensive and in-depth investigation on joint dangerous act by means of comparative and positive analysis. Additionally, the dissertation deals with some basic theoretical controversies on joint dangerous act in order to make it get more clear and perfect, serving as some guidelines for judicial practice, protect and maintain the consistency of legal practices.Chapter one is mainly on the basic theories of the joint dangerous activity, including its concept, history, function in the common laws, and continental laws, the necessity and the significance of its establishment in our country's legislation and practice. In order to discuss the issue of joint strict, the first crucial step is to make clear the concept, which is the basis for the constructive requirements and civil liability. After the clarification of the concept and characteristics of joint dangerous act, a comparative study on its historical development is performed in the dimension of both practice and theory. Also, the legislation and practice concerning joint dangerous act in China has also been briefly introduced as well.Chapter two discusses the factors of liability for joint dangerous act according to the six factors of liability for tort. According to the six factors of liability for tort strictly, this dissertation discusses the factors of liability for joint dangerous act, which can avoid the disorder of the existing theory.Chapter three comparatively analyzes the different theories of principle of imputation which is also the theoretical centre of joint dangerous act. Moreover, it puts forward the author's viewpoint that the presumption of fault on the basis of the presumption of causality.Chapter four introduces the liability of joint dangerous act and the conditions of exemption from liability. In order to seek for the reason why the actors of joint dangerous should bear the liability, this dissertation makes a deep research on the basis of imputation from two aspects, why the actors of joint dangerous should bear the liability and why the liability is not comparative liability but joint liability. Generally speaking, the determination of principle liability about joint dangerous act is based on potential damage act and unidentified defendant, and for that all actors must take the burden of proof. Finally, the author proposes and advocates that it is essential to establish joint dangerous act system to give full implementation to compensation, punishment and prevention of adjusting function of the tort law when confronted with the conflict of interest between the innocent victims and the innocent actors.