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On Concept Analysis Of Tort

Posted on:2011-07-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y WangFull Text:PDF
GTID:2166360332956732Subject:Law
Abstract/Summary:PDF Full Text Request
Tort Liability Law of P. R. China is passed at the 12th Session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on December 26th, 2009, which is taken into effect on July 1st, 2010 and offers legal basis to legal tort theory in our country. Tort, as one of the happening course, is an important jurisprudence concept, whose definition would influence the developing direction of the whole theory of tort law. Tort Liability Law in China doesn't confirm its concept, consensus is hard to be reached in the academic field, how to define its connotation and extension has been always the subject perused and studied hardly by many scholars.Both legislation cases in common law countries and countries with continental law system have legal norms to tort, which offer instructional norms for the law court to hear tortuous cases and supply legal basis for scholars to study concept of tort. Because of function boundedness of language expression, it is impossible to deliver a comprehensive concept to tort, unless we can define it exactly through studying connotation and extension of its concept. As for such an important jurisprudence concept, no matter in legislative and judicial view or doctrine, there is not a united and known common accepted definition of tort, which causes dispute among scholars. No matter the common law system or the continental law system, it is considered that tort reflects a kind of deviation towards law or certain social public moral norm, the property of tort is illegality of behavior, which is the key component of tort, the beneficial measure factor contained in illegal concept also reflects judging factor of common social value, considering that a certain behavior lacks validity and is entitled with tortuous factor, so tort is constituted. It is a must to clear out illegal concept so as to clear out concept of tort, illegality should adopt objective judging standard. Fault holds a decisive theoretical meaning in tort law field, which is a kind of subjective judgment. While illegality is a certain objective judgment, which can not be the key component of tort coordinated with fault. Fault is the basis for the doer who has difficult in responsibly subjectively, which is key element for the doer to establish tortuous responsibility instead of key component of tort, thus, the key components of tort should be: behavior must infringe on other's legal rights, damages should be caused, behavior should have illegality, causality should exist between tort infringing on other's right and its result.It is a must to consider aim and function of tort law for purpose of exactly defining concept of tort, which is quite important for defining its connotation. Essential aim and function of tort law is to fill up damages by the victim, thus the mode of fill up damages is stressed in legislation, aim and function problems of tort law are both reflected in fair responsibility, faultless responsibility and fault understanding responsibility formulated in tort law. Another function of tort law is to restrain its happening function, illegality of behavior should be considered aware of tort, which is the behavior denied and punished by law.Although our legislation formulates that fault is the condition to undertake civil responsibility, it doesn't formulate it is the key component of tort, our country, as for definition of tort, still take fault as the key component of establishing tortuous liability instead of key constructive element in light of judicial practices and the theoretical circle.Above all, tort is an actual behavior with infringed rights and benefits but without legal and valid incident origin as the symbol, with practical illegal judgment as the connotation which infringes on other's rights and benefits without legal and valid causes and judges its illegality according to law or social common ideas.
Keywords/Search Tags:Tort, Fault, Illegality, Tort Liability, Concept
PDF Full Text Request
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