On Dangerous Liability

Abstract:Since the 19th century, along with technology becoming more mature, various sophisticatedly designed machinery and other finished goods widespreadly infiltrates the surrounding society, in the benefit of mankind ,which also creates a lot of insecurity, or even injury and death. The face of frequent incidents of various types of machinery, industrial disasters, environmental pollution accident, if it continues to follow the traditional concept of fault liability, then the result would be that in many cases, due to the failure of the fault of the burden of proof on the perpetrators, victims often can be denied relief. With the continuous advance of technology and industry, the consequences of hazardous activities is increasingly evident, even increasing trend, almost above the general tort, which becomes the main phenomena of modern social rights violations. Dangerous liability is emerged in this context, and its arrival has brought the tort law new vitality. At present, in the newly adopted "Tort Liability Act", although which has made great progress compared with its previous legislation, there are still many problems, the concept of dangerous liability have not yet adopted. Through the legal method of the comparative study and analysis of the sociology of law, this paper dialysises the syetem of dangerous liability, defining the concept of dangerous liability, re-interpreting the legal basis of dangerous liability through the introduction of risk domain theory, proposing recommendations on perfecting dangerous liability legislation, with a view to making a contribution to our country's future dangerous liability legislation.In addition to the introduction and epilogue, this paper is divided into five parts.The first part, the definition of dangerous liability. In this part, the author sorts out the understanding of dangerous liability of the scholars from various countries, by comparison, brings forward his own point of view. In order to further clear the concept of dangerous liability and clarify the difference between the related concept, the author also take no-fault liability, strict liability for comparison.The second part, the legal basis of dangerous liability. In this part, first of all, the main theories on the legal basis of dangerous liability are all described in detail, then the author analyses the advantages and disadvantages of the various doctrines; secondly, the author introduces the risk domain theory,which re-interprets the legal basis of dangerous liability,and explains the significance of examining dangerous liability under this perspective. The third part, the value analysis of dangerous liability in the context of risk society. In this part, the author first conducts a brief description of the risk society theory through the analysis of the sociology of law,and sets forth the social background in which dangerous liability exists; secondly, by Aristotle and Rawls's theory of justice introduction, raises the value of dangerous liability in the context of risk society is that it reflects the requirements of distributive justice, responds to the modern risk, and implies that the maintenance of social security.The fourth part, the Comparative Law study of the system of dangerous liability. In this part, the author describes and compares several typical countries' strict liability system of the Common Law and several typical countries'dangerous liability system of the Civil Law through the legal method of the comparative study, then brings forward useful related revelations through the study of risk domain theory.The fifth part, the present situation and improvement of dangerous liability legislation in our country. First of all, the author assesses the present situation of dangerous liability legislation in our country; secondly, from the four aspect of the definition of the general terms of dangerous liability,determining the specific measurable factors of dangerous activities or dangerous materials,dangerous liability should adopt considerable causality and presumption of causation,the coordination between dangerous liability and the corresponding system of other legal department should be maintained, the author proposes recommendations on perfecting dangerous liability legislation.