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On The Tort Liability Act's Objectification Of Fault

Posted on:2010-01-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y S LiuFull Text:PDF
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The tort law has played a significant role in promoting the progress of human society. However, the tort law, with the fault liability as the core, met with unprecedented challenges in the twentieth century. Facing to the crisis, there emerged a new model to identify fault based on objective criteria, and formed a system and tendency of the objectification of criteria, which is the objectification of fault. The theoretical basis for the objectification of fault is the Positive Philosophy and philosophy of social law. The theory denies the possibility and necessity of law to evaluate the subjective fault of perpetrator; believing that the essence of fault is not the psychological state of foreseeing the damage or not, but the social harm.The concept of fault generated in the classical period of the Roman law. At this point, the Roman law had already made a distinction between fault and the legal consequences of the damage caused by incidents, and confined legal obligations into the range of fault. The legal liability of the damages not due to willful violations in the classical period of the Roman law can be seen as the origin of tort liability of fault in modern times. In Roman Justinian times, Roman law on fault has been in a high degree of development, ant there emerged the so-called duty of care and narrow breach of duty of care in law. In Justinian era, when determining whether the behavior was at fault or not, Roman law mainly drew on objective criteria. Namely, the objective of fault originated in Roman law.Related to the debt default, the French Civil Code in 17 century, provided that the debtor shall perform the bonus pater familiars' attention, while also required that if the debtor (perpetrator) advocated that the damage was due to an accident or force majeure, he or she needed to assume the burden of proof, In the 19th century, due to the gradually revealing flaws in the protection of the victims of the subjectification of fault, Modern German jurist after Jhering gradually changed to adopt the objectification of fault which is in line with the spirit of Roman law. The identification of fault in the tort law in Modern Britain, mainly adopted the objectification of fault theory. Anglo-American tort law has created the concept of reasonable person and rational person as objective criteria to determine whether the actor was at fault, the objective of fault or tort law in various countries have gradually been identified and continue to move forward. Objectification of fault is an aggregation of a variety of rules to identify fault based on objective criteria. In its general rules, to determine negligence standard of"bonus pater familias","legal acts","reasonable person", etc. The bonus pater familias rules of conduct derived from Roman law, and French civil law basically followed the rules of conduct on identifying fault. The bonus pater familias rules of conduct refer to the standards of conduct that a good administrator should have in a specific implementation of the relevant acts. The rule of legal acts means that the actor is in a violation of legal standards of conduct if he or she fails to make the necessary attention in social life, and it makes the existence of fault. The Rational person standard is defined as the level of attention that an ordinary and prudent person should have with the general ability of foreseeing, which is the criteria to identify faults in English tort law. The Reasonable person rule of conduct is the standard of judging faults under normal circumstances in American tort law. With the integration trend of the two Schools, there is more hope of finding a common objective criterion in order to work better for the objectification of fault under normal circumstances to judge the fault. In accordance with the views of the social law, the common standards should be the general or generalized legal requests on a particular industry, one particular social class or persons engaged in certain social activities. In the objectification of fault, the objective criteria on judging fault is divided into ordinary people's attention, same attention to handle own affairs and good manager's attention. Violating these rules of conduct, the perpetrator will pose a major fault, concrete light fault and abstract light fault.When dealing with special cases, the tort law gradually generated the rule that illegal as a fault. Illegal as a fault refers that the perpetrator can be assumed to be at fault if his or her behavior is illegal in particular cases. Terry, an American tort jurist, created a new model to judge a fault based on the irrationality of danger against the question whether the perpetrator is at fault if his or her dangerous acts cause damage to others. He believes that fault is a behavior endangering the society, instead of the perpetrator's subjective state of mind, and it is irrational essentially. Learned Hand, a famous U.S. Judge, formulated the Hand formula which refers that we can identify the defendant at fault on the damage caused by the accidents, if the economic costs on the preventive measures before the accident are less than product of the losses arising from the incidents timing the probability of loss. Based on the analysis and discourse on Hand formula, Posner, on behalf of the school of economic analysis of fault in the United States, put forward the theory of costs and benefits on identifying faults. He thinks that fault is that the cost to take preventive measures is less than the product of the possibility of damage timing its seriousness. These fault models to determine the formation of the fault has the objective of the special rules.In the tort law, identifying fault based on subjective criteria, needs to analyze and judge each perpetrator's subjective state of mind, which is actually a complex identification process full of subjective factors, so the results are often contrary to the fairness. Identifying fault based on objective criteria reflects the principles of equality, simplicity, and accuracy. Stepping into a modern society, no matter of civil law or common law, the criterion of liability in the tort law has emerged a diversified development trend. Objectification of fault has gradually blurred the boundaries of the different criteria of liability in the process of development. Society is the basis for the existence of tort law, and the function of the tort law is not only to safeguard the orderly operation of society, but also to contribute to social progress. Has the tort law been accepted by be public, it must be able to adapt to social development, running easily, and the objectification of fault provides such a condition to the tort law. The emergence and development of the objectification of fault has accelerated the socialization process of the tort law, adapted to the requirements of the rapid development of modern society.
Keywords/Search Tags:Objectification of Fault, Bonus Pater Familias, Rational Person, Hand Formula
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