Common Risk Behaviors System

It has been no more than 100 years since the foundation of joint dangerous act system. So it can be regarded as a new system in Tort Law that has the history of thousands of years. In the area of Tort Law in our country, joint dangerous act system lacks relevant legislation and systematic theoretical research, leading to the inconsistence of judicial practice.In this dissertation, the author systematically studies joint dangerous act by methods of historical research, comparative analysis and case studies, and focuses on analyzing the concept of joint dangerous act, constituent elements, attribution, and liability. Furthermore, the author profoundly studies the theoretical controversy with a view to further improving joint dangerous act system in our country and playing a reference role on the legislation of joint dangerous act.This dissertation is composed of three parts: Introduction, Text and Conclusion.Introduction briefly introduces procreant background, national and international development status of joint dangerous act and indicates research significance. Text is divided into five chapters.Chapter I summarizes joint dangerous act. Section I introduces our country's academics' interpretation of the concept of joint dangerous act, analyzes different theories, and redefines the concept of joint dangerous act, that is, when it cannot be ascertained whom of several persons implements dangerous act which makes others' body injured, property damaged, every person shall bear joint and several liability of the actual damaged results. Section II describes the origin and development of joint dangerous act. The author studies the formation and development of joint dangerous act by comparing the legislation in Germany, France, Britain, United States and China.Chapter II studies the constituent elements of joint dangerous act. Section I introduces and analyzes foreign and domestic viewpoints on the constituent elements and discusses from five aspects: (1) several actors implement the dangerous acts; (2) the acts have a correlation of time and space; (3) the dangerous acts are likely to cause damaged results; (4) indeterminacy of the infringers; (5) the joint dangerous actors subjectively have presumed joint negligence. Section II describes act factors from the aspect of act's intercommunity and danger. Intercommunity means several actors' acts have a correlation of time and space. The danger of acts means several actors' acts have possibility to cause damage and make a dangerous situation. This danger will damage or likely to damage or be damaging or has damaged legitimate civil rights and interests. Section III describes the causality. The author analyzes inevitable causality, chosen causality, putative causality and fictitious causality. The author thinks there is a potential causality existing between joint dangerous actors and victim's damages, so law presumes all actors' acts have causality with damages. Section IV discusses four problems of subjective elements. Firstly, joint dangerous actors have joint faults or not? The author raises her views that joint dangerous act itself is a presumption of causality. Joint dangerous actors subjectively have presumed joint faults; Secondly, non-infringers have faults or not? The author thinks that non-infringers of joint dangerous act have presumed faults; Thirdly, contents of joint dangerous actors' subjective faults should include both intention and misfeasance; Fourth, there is no meaning contact among joint dangerous actors. Section V describes damaged results considering the characteristics of actual infringers. First, the author analyzes the relationship between damaged results and actors' dangerous acts. The author illustrates that when actual damaged results exist, actors' dangerous acts may exist or parts of actor's dangerous acts may exist while others' dangerous acts may have not existed. Secondly, unknown participants do not attribute to joint dangerous act since the author thinks unknown damaged results made by several persons' infringed acts do not accord with the basic characteristics of indeterminacy infringers.Chapter III describes attribution basis and attribution principle of joint dangerous act. Section I outlines attribution, attribution basis, attribution principle, the concept of attribution of joint dangerous act. Section II analyzes the attribution basis of joint dangerous act from two aspects. The author first analyzes the reasons of attribution basis to make all joint dangerous actors bear liability: the policy requirements of sufficient relief for victims, the concept of fairness and justice, danger source theory, danger control and prevention theory. Secondly, the author analyzes attribution basis of joint and several liability and raises that from a realistic view, joint and several liability depends on the intercommunity facts and from a legal view, liability consequences are indivisible. Section III describes attribution principle of joint dangerous act. The author introduces and analyzes the opinions of China's scholars concerning joint dangerous act attribution principle. The author agrees that attribution principle of joint dangerous act is fault presumed principle of causality presumption.Chapter IV discusses liability bearing of joint dangerous act. Section I describes liability consequences of joint dangerous act. The author introduces joint and several liability law in Germany, Japan, Greece, China Taiwan and China and indicates two viewpoints of liability partaking: average partaking theory and colligate elements theory. The author agrees with colligate elements theory. Section II analyzes liability relief of joint dangerous act. There are three perspectives: positive, negative, and compromise. The author agrees with positive viewpoint, that is, actor can relieve from liability as long as he can prove there is no causal relationship between his own acts and damaged results.Chapter V is the legislative improvement of our country's joint dangerous act. On the basis of analysis in the former four chapters, section I first advances the necessity of setting joint dangerous act system in our country's legislation, analyzes our country's legislation of joint dangerous act and indicates the deficiency in our country's legislation concluding: adjustment scope is not comprehensive, simply regulation of judicial interpretation is difficult to accurately define joint dangerous act, the logic plight of judicial interpretation. Section II analyzes the regulations of joint dangerous act in our country's relevant Civil Code draft. The author proposes that common point of three drafts is legislative purpose; different point is legislative form, act elements, conditions of exemption.Section III sets forth material advice to improve legislation of our country's joint dangerous act. The author firstly thinks that joint dangerous act shall sufficiently protect victims and give actors freedom space simultaneously. Secondly, the author further indicates fatalness and intercommunity of acts as two most important criteria of cognizing joint dangerous act in order to distinguish between joint dangerous act and high altitude throws. Thirdly, the author sets damaged property into application scope of joint dangerous act. Fourthly, the author proposes that actor can relieve from liability as long as he can prove there is no causal relationship between his own acts and damaged results. At last, the author indicates two specific legislative provisions.Conclusion briefly summarizes the contents of the dissertation, and indicates joint dangerous act research shall be strengthened in our country and joint dangerous act system shall be established as soon as possible according with national conditions.