On The Reconstruction Of Tort Causation Theory

As an essential condition of liability for tort, causation is always a key issue both in theoretical field and judicial activities. It has been developed a variety of theories by jurists, but still is a question to be solved. Among the existed theories, the author classified them as two: the one is called unitary causation theory, and the other is dualism causation. The essay makes a study of the two patterns of causation and expose the shortcomings of both of them. Then it tries to construct new unitary causation theory, although on overall the construction is possible. It contains three parts in all followed.Part one is mainly concerned with the existed causation theory both in continental law and common-law system. According to unitary causation theory, the causation is thought to be objective and avoid any value analysis. The unitary one keeps the objectivity of causation but it refuses any value estimation, which is indispensable to the tort law. The unitary causation theory has no use to the limited liability and in the judicial activities, it will make the liability spread with no limitedness. According to the dualism causation, the causation should be determined by two stages: in the first one, the causation is called causation-in-fact; next one is called proximate causation. The dualism one makes the proximate cause the key position in causation and in this stage , the justice, equality and public policy will be the main elements referred to. According to dualism causation, the causation not only contains unavoidable value estimation but also an instrument of implementing the public policy. This part concludes: both of the theories can't solve the causation.Part two is mainly concerned the re-review the causation in itself. The object and function of causation are discussed. It suggests that the object be limited as the connection between injuring action and damaged consequences. As for the function, the author considers that the role of limiting liability must be abolished and the definition of the infringer should be kept.Part three is mainly concerned the construction of the causation theory. The dualism causation has been the dominant causation theory in both law system.But it can't make the definition of causation clear and obvious. On the contrary, it plagues the jurists and judges continuously. As above-mentioned, the role of limiting liability is an extra function for causation, so the dualism causation should be substituted for by unitary causation theory. But the unitary theory constructed in the essay is not the same one developed in the early tort law in continental law system. The new one not only adheres to the objectivity but attaches importance to the value judgment and the public policy estimation. As for the role of limiting liability abolished, the author still considers it a necessary function for the tort law, although it is extra for causation. So in the last part of the essay, the fault, illegality and discretion of judges are discussed, which are convenient and suitable to limit the tort-feasor's liability.