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Causation Identification Of Tort

Posted on:2011-07-02Degree:MasterType:Thesis
Country:ChinaCandidate:T LiuFull Text:PDF
GTID:2166360305957391Subject:Law
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Causation, as a philosophical concept, reflects the interrelation between objects and phenomena. Further, in tort law, causation, which is an essential element in the construction of tort liability, reflects the interaction between the actions that infringe the civil rights of others and the corresponding facts. The study focused on this causation with no doubt plays an important role as to achieve correct tortious cognizance in legal practices.Three chapeters are consisted in this paper.The fundamental discussions on the causation of tortious liability are presented in the first chapter. First of all, as the fact that law circle always tends to begin with exploring the philosophical category when studying the causation in tort law. Therefore it is considered of great importance to define the similarities and distinctions between the causation in philosophy and in tortious liabilty. Secondly, the research scope in this paper, as the foundation the study, was confined in those causalities of the tenable liabilities,which was based on the comparison between the liabilitiy establishing causalities and that of liability implementing causation. Thirdly, the various representatives views on'which are the causes in the causal relations'in the law circle are compared, and based on which, the author furnishes the basis for regarding tortious act as the cause in this paper. The form of the causation are discussed in the final part of chapter 1, in order to maintain the comprehensiveness of the research.The study of the existing theory referring to the causation of tort liability is provided in the second chapter. A variety of theories related to theoretically identifying the causation are developed in law circle since the complexity of the causation in the nature of itself, such as: the But-for test, the probable or the natural consequence, the substantial-factor formula, the adequate causation theory, the purpose of legal rules, the rule of foresight, the common sense principles causation, he cause-in-fact theory, etc. Among which four major theories are selected by the author to be further discussed in detail. The first one introduced is condition sine qua non, the explicit instruction on which included the basic elements, assessment, and its defects. The second interest was the substantial-factor formula, whose main contents and controversies were introduced. The third theory to be discussedas well as the mainly fouced one of the author, is the adequate causation theory, which is the most influential theory of causation in the mainland China civil law system and the main focus of this paper. Through its arising background and development process, the author described the theory's probability in detial from four aspects, and eventually gave comments on this theory. Last but not least, the purpose of legal rules is introduced in chapter 2, including its basic elements and the critiques on which.The third chapter is the focus of this article. In the first part of this chapter, the author reflects on previous research views on causation of tortious liability. This paper not only refute the view doubting cause and effect relationship of tort liability, but also criticized the previous studies which wish to establish a complete theory of causation in order to solve this problem once and for all.The second part of this chapter elaborates the determination of the causal relationship. The proposal that the determination of causal relationship should be judged by the claims of science and common sense has excluded the subjectivity of legal policy factors to the maximum extend after fact causation is strictly defined. Thus, the determination of the causal relationship only needs to be judged according to the rules of evidence, which is undoubtedly the kind of work the court is good at .At the end of this part, a complementary introduction of the special types and the determination of the causal relationship of omission are made in order to make a more comprehensive discussion. The third part of this chapter is to identify the legal cause and effect relationship. The determination of the legal causation is the hardest point in causation of tortious liability.How to distinguish between "cause" and "pure condition" and how to cut the chain of causation, are difficult issues of causation theory. In a critical attitude, the author learns from the Hart's view on cause and effect, solving the problem according to the standard of "unusual circumstances" and "normal circumstances". In order to avoid the vagueness and subjectivity of standards, the author makes the standards more accurately and operational based on social responsibilities of tort liability.At the end of the third part, the author makes a brief description and discussion of theoretical research on hot issues such as the no-fault liability, Nervous Shock cases and moral damage compensation, to identify causal relationship more comprehensive.In the process of the study on cause and effect relationship of tort law, author always identifies the causal relationship with the criterion of objectivity and feasibility, and, in fact, takes the attitude of strict causation.But the author rejects the causal minimalism, which confines the identification of causal relationship to mere factual causal relationship.More precisely, the author does not advocate that tortious liability should be solved only based on standard of causation.At the end of the paper, the author again emphasizes that the purpose of strictly recognizing the causal relationship is to narrow the scope of tortious liability by limitting the establishment of causation, so as to prevent many difficult cases, which lie out of the scope of tortious liability, from coming within the scope of tort law or troubling causation research. On one hand, this will enable tort law to show its clear and objective causal relationship; on the other hand, this will attract attentions to building damage compensation and other systems in order to find a better way to make up for the damages, which will promote the development of legal construction and realize the concept of social equity and justice.
Keywords/Search Tags:Tort, Causation, Factual Causation, Legal Causation
PDF Full Text Request
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