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The Research Of Commonality Constitutive Requirements Of Joint Tort

Posted on:2009-07-29Degree:MasterType:Thesis
Country:ChinaCandidate:Q SunFull Text:PDF
GTID:2166360278963540Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Joint tort, as an important civil law violations, with the refinement of the social division of labor, with the close relationships, with the associated, is growing to show importance of social significance. However, because various reasons, different countries have different definitions about joint tort in theory and legislation, and there are still a lot theoretical and practical issues to be studied about the scopes and types of joint tort. From the perspective of China's current legal rule of the joint tort and relevant judicial interpretations, this paper states that the establishment of joint tort subject to the determination of their commonality. Recently, our theoretical understanding of joint tort is different, such as subjective theory, objective theory, compromise theory. That the joint tort on the relevant legal provisions and judicial interpretations make the definitions of joint tort more complex. Through the different periods, different countries and regions on the commonality of joint tort about the legislative provisions and theoretical study ,this paper sum up the evolution of joint tort in the common law tradition and policy orientation, on this basis, through the assessment of China's theory On the " joint tort ", and explain the various values behind the theories ,and with the evolution of tort law functions, the changes in the value of targets, such as expanding the area of application of contemporary trends in the development of tort law, the common system of tort Connotation and extension of the commonality also have had a profound impact. Revealed by the potential impact of law of tort reform on the commonality disputes, dissection and indirect infringement of its outer edge, clarify common violations in the current social evolution and the nature of the concomitant impact, finally a brief assessment of the existing common solutions to joint tort .And on this basis in view of tort law by the logic of that form of proof can not be self-consistent, there should be a causal link between the joint tort of commonality and re-building of existing common tort system that common types of violations are analysed.This paper is divided into five main parts, which explore the common constitute elements of joint tort. Each parts of the content can be summarized as follows:Part I: Based on the "General Principles of Civil Law" and " judicial interpretation of personal injury compensation " ,this paper explore the commonality of joint tort triggered by the rules of joint tort behavior .This paper also analyse China's existing legal system on the definition of joint tort ,such as the ambiguity and illegitmacy, and give brief analysis of the unreasonable standards, and problems of the commonality not only are plaguing our theoretical circles, but also have a negative impact on judicial practice. In theory, the explanations of commonality are not unify even against, the administration of justice on the joint tort have no specific standards, highly arbitrary, and it has great significance to make it clear to solve the theoretical and practical problems of joint torts .Part II: From the perspective of Comparative Law ,this paper combing the commonality of joint tort, and comparing the differences between common law and civil law in the system of England and America. since Germany began to identify joint tort system, the civil division in other countries except the france have to follow the establishment of a joint tort system and determine "fault" as the common violations of commonality. With environmental pollution, and a large number of pollution incidents have emerged, for the protection of the victims, the traditional civil law countries of the joint tort of the common elements of a "relaxing", and this difference is that the common law jurisprudence from the traditional tort law in the spirit of pragmatism, not common for violations of that commonality, but will connect the joint tort with liable responsibility to define what is the joint tort within the scope of liable responsibility.Part III: Joint tort constitute a common element of the dispute. On the common elements of joint tort, China's legal theory can be divided into three theories, that is subjective theory, objective theory and compromise theory. The subjective theory, strictly limit the expansion of the scope of joint tort , under the current trend of diversification of the joint torts, And the protection of victims of ill-risk, but in the opinions of objective theory, that broad common violations will only for the alienation of "infringing the majority of people." Compromise theory adopted double standards, simply linking the subjective theory and objective theory .and can not find a fundamental resolution of joint torts problems, and the doctrine between the different theories hidden conflict and balance problems such as the full rights of victims and perpetrators of acts of relief to the appropriate extent .Part IV: Joint torts face challenges in contemporary. In the current "crisis, with the risk of damage to society", forcing the joint torts facing challenges in real life. To a certain extent, tort values changed the joint tort system, and the determining of without the responsibility fault to a certain extent have the impact on the joint torts of that standard, on the basis of this, reveals the evolution of the tort ,outlines the boundaries of direct and indirect violations, make it clear that the nature of violations are the basis of commonality.Part V: Joint torts behaviors constitute reconstruction of commonality. Because common elements of the joint torts system is difficult to establish, resulting in the scope of violations are blurring together, study on "commonality", and scenes of modern social life are more complicated, relations between the interests of parties showing a trend of diversification, so the traditional common theory is stretched infringement, whether from the association to explain common or from the way of shared commitment, the common solution is not possible to fundamentally solve the social reality problems. The law of tort as the strongest sectors laws response to the real life , the reasoning of logical form often can not self-consistent, the logical explanation need the help of a common elements. The explanation of commonality violations using cause and effect relationship is not only go with the development of tort law ,but also guarantees the stability of tort law, and leave reasonable room for the future emergence of new joint torts behaviors, making sure that that the common tort system have the inherent logic and external consistent.
Keywords/Search Tags:Joint torts, Elements of a commonality, Legal policy, Indirect violations, A causal relationship
PDF Full Text Request
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