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On The Identification Of The Fault

Posted on:2006-08-21Degree:MasterType:Thesis
Country:ChinaCandidate:W Z WangFull Text:PDF
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In 287 BC, Roman Aquiliana Law firstly established the fault liability principle, after more than 2000 years' development, three legislation systems about fault principle have been formed worldwide: the highly abstract system represented by French Civil Code, the highly concrete system adopted by the English-American countries and the eclectic system by German Civil Code.In China, the provisions set by the civil law is like the French System while the connotation and extension concerned is not available. The scholars are not about to arrive an agreement on the concept about it, which makes it different in dealing with such cases.At present, the textbook summarizes the standard of culpa identification as subjective culpa theory, objective culpa theory and economic analysis theory. Among them, the subjective theory is regarded as mainstream theory.But once we talks about the subjective theory, it is hard to confirm that if the inflictor is awareness of the causation and the happening of the damage since it's not easy to analyses the subjective aspect and identify the behavior's subjective will. So the subjective theory has the technical disadvantage in operation process. Furthermore, the theoretical base of the subjective theory is to punish the behavior morally, which takes little effect in light of function because the moral punishment is not suitable for the current material condition seeing from the judicial practice in the world, so the subjective theory has not been persisted. The Hund Formula of the economic analysis theory is feasible theoretically, but the operation of this formula requires huge number of statistic data that is hard to get, and this method may leads to some bad results that are not accordance with the public concerns about justice and fairness, so this theory can just be regarded as reference.The objective theory is proved to be realistic because there is also the notice obligation in China's law system, that is, firstly, nonfeasance obligation, secondly, feasance obligation, thirdly, self-protection obligation, fourthly, to ensure that the behavior himself is accordance with the normal standard, self-controlled animal or staff has no unreasonable risk and employee or the person under guardian are not ableto damage the others.But, to identify the fault behavior by the breach of the notice obligation is somehow unreasonable because it cannot explain the origin of the notice obligation and conflict between the two parts, and which may leads to the result of interest unbalance. So, this article suggest that the behavior standard breach theory should be adopted to identify the fault.The search of the standard can be obtained from not only the existed law but also the conventions, experience, moral regulations and some professional roles and so on. The fault concept based on the breach of behavior standard also arouses the concept of the fault and the intercross of the causation, law breach and obligation capability and so on.It is believed by some scholars that the fault is subjective concept used to describe the contradiction of the objective concept, which are corrected by this article. This paper believes that the origin of the fault is the incorrect things or behaviors, so there is no conflict between the breach of the behavior standard and origin of the fault.Finally, once it is needed to identify the fault, the first is to check if there is behavior role being recognized by the whole society and confirm that if it concludes the notice obligation above mentioned. If it has, to compare the behavior with the standard, in the case of reaching the standard, the actor are to be regarded as no-fault, if not, to be fault.
Keywords/Search Tags:fault, subjective fault, objective fault, notice obligation, behavior standard
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