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Causal Relationship. Tort Research

Posted on:2008-05-09Degree:MasterType:Thesis
Country:ChinaCandidate:H W ShiFull Text:PDF
GTID:2206360215960877Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Jural causality deprives from The concept of causality in philosophy. The causality of tort law mainly includes two functions: to confirm the existence of duty and to limit the scope of responsibility.The Anglo-American tort law divides causality into "causality in fact" and"causality in law" , The confirmation of causality in fact mainly consists ofnecessary condition theory, substantial factor theory and essential element theoryof sufficient condition. The theory of the confirmation of causality in law mainlyincludes the theory of direct result, The forseeability of theory and risk theory.The Continental Legal System distinguish causality of tort law into causality of responsibility establishment and causality of responsibility scope, but in actual practice, the united thinking mode is utilized to judge the causality . causality theory of The Continental Legal System mostly mainly consists of "the condition theory" , "equal causality theory" and "law purpose theory" and so on. Moreover, the Japanese law also put forward "the obligation artillery range theory" , "the risk connection theory" and "the probability theory" .The differences in historical origins, legal tradition, methods of law between two Fundamental Law systems lead to the great disparity in confirmation of causality. But for a long time, the mutual penetration and the deeply communication two cultures contributes to the great similarity between The two Fundamental Laws in causality theory.For a long period, our country adopts the theory of inevitable causality in the problem of tort law , this causality theory is impractical and has lots of abuses, in recent years, many scholars of china advocate to draw on theory of causality conformation of The Anglo-American law system and The continental law system.Through the above introduction and analysis, This text put forward the following conceptions for the causality conformation of tort law.To distinguish the causality of responsibility establishment and causality of responsibility scope, and to define the function position of causality. Distinguish the causality in fact and the causality in law, firstly judge the existence of the causality in fact, and then decide if it constitute the causality in law.In the process of responsibility establishment causality, mainly depend on the conformation of the causality in fact, however , the conformation of the causality in law rely on the illegality and fault essentials, which mainly is certainly investigation.In the process of responsibility scope causality, we need to both investigate the causality in fact and the causality in law , and let the confirmation of the causality in law dominate, for the confirmation of the causality in law, we can reference continental law system' s "correspondence theory" and Anglo - American legal system's "foreseeability theory", we build identification criteria of probability and foreseeability, consider the imputation system of fauts, damage, law purpose and law policy at the same time.
Keywords/Search Tags:causality, causality of responsibility establishment, causality of responsibility scope, causality in fact, causality in law
PDF Full Text Request
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