Study On 'Commonness' Of Joint Torts

Joint torts are an import part of tort law and 'commonness' of joint torts is the key of joint torts liability. Through the investigation into the history, development, current situation and prospect of 'commonness' as well as the comparative analysis of all current tort laws, it is found that although the provisions of 'commonness' in different countries are not the same, they mainly cover these aspects: subjective fault (including joint intention or joint fault), objective conduct and the combination of subjective fault and objective conduct. Currently, there is great divergence of views on 'commonness' of joint torts in academic circles in Mainland China, such as 'the theory of intention liaison', 'the theory of joint fault', 'the theory of objective conduct' and 'compromise theory' and so on.This thesis aims at studying the advantages and disadvantages of various views on 'commonness' of joint torts by comparing current tort laws at home and abroad as well as by analyzing theories of it and attempts to discuss it by taking 'result' as the starting point and the key rather than by the traditional theory focusing on 'fault' and 'conduct'. This thesis consists of four parts, besides introduction and conclusion.Part one is the historical evolution of 'commonness' of joint torts. This part investigates the system of joint torts from the angle of historical evolution, including its occurrence, development and evolution in the common law system and civil law system, and based on that, the evolution law of 'commonness' of joint torts is discussed, that is, the change from joint intention to joint fault and that from the subjective theory to the theory of objective conduct.Part two is the comparative analysis of 'commonness' of joint torts. This part aims to analyze the typical legislation cases about it in the civil law system and common law system with the comparative method and to provide a comparative view for the new theory put forward in the following parts in the light of the legislation cases about the development, evolution, current provision and legislative background of 'commonness' of joint torts.Part three is the theoretical discussion of 'commonness' of joint torts, which is the key part. In this part, the author summarizes various views on 'commonness' under the current civil law on the basis of introducing and analyzing the scientific viewpoints on it in the current civil law in China. Furthermore, the author analyzes and discusses the connotation, theoretical basis as well as disadvantages of various theories of it by taking the domestic theories as the focal point and using the foreign theories for reference.Part four is the explanation and construction of non-separable joint damage, which is the theoretical innovation. In this part, the author discovers that there is no theory or method can be the unified basis of all types of joint torts by summarizing all theories in the preceding parts and analyzing both their advantages and disadvantages and then reconstructs the system of joint torts on the basis of the theory of non-separable joint damage as the new constitutive theory of 'commonness'.