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On Judicial Application Of "High-risk Liability"

Posted on:2012-10-24Degree:MasterType:Thesis
Country:ChinaCandidate:Z W ChengFull Text:PDF
GTID:2216330338463906Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The emergence of risk liability for the modern tort law has brought new vitality, as an important modern tort law system. "Tort Liability Act" in the provisions of Chapter IX of the "highly dangerous responsibility." Make the paper a "high risk liability" be effective, must be sustained to justice apply. At present, China on "high-risk liability" theory of justice is still significant for the weak, leading to the judicial application of the difficulties and confusion. To be adopted by the author of "high risk liability" relevant laws and regulations, "high risk liability" for the judicial creation, and "high-risk liability" causation, damages, and other specific exemptions and some other form of justice for the analysis of trial to the "high-risk liability" Justice for study and exploration.The first part is a "high risk liability" related to the understanding of the law, that "Tort Liability Act" on the "high risk liability" requirement has three characteristics:First, the danger of using narrow concept of responsibility, only provides a "high risk liability" general terms; the second is to take the general terms and the type of combination of legislative model, so that tort law has both a high degree of generality, but also has a new operational tort law; third is the "high-risk liability" General Terms and Conditions the composition of simple elements, so that the "Tort Liability Act" to develop the attitude to adapt to a dangerous trend responsibility. But also for the correct application of law and reasonable standards of discretion and challenges. The first part also analyzes other "high-risk liability" clause in the existing system of norms in the position. The second part of the "high-risk liability" applies to the existence of judicial creativity, that justice must exist to create the "high-risk liability" judicial application, the "high-risk liability" development also depends on the creative application of justice; "high risk of liability "General Terms as" high risk liability "type of justice provides the basis for expansion," the United States Second Restatement of Torts, "" Basic Principles of European Tort Law (Draft) "on how to define" high risk operations "has important reference value, beyond the beginning of this type in the judicial application of the extension, should uphold the attitude of the times and considered highly dangerous operation which should have too permissive society; the focus of modern tort law in an open response to the needs of the real world It also should be concerned about the issue of fairness of justice, we must strengthen the system construction, reasonable standard "high risk liability" for the judicial creation. The third part of the "high risk liability" cause and effect relationship between judicial application of legal responsibility to meet the risk of development of the theory on the causal relationship between trends (on the one hand, the law requires only that the fact that close to the objective facts, not demanding the two are completely equal, appropriate expansion of the scope of causality; the other hand, the performance of relief for the victims of the burden of proof); to properly distinguish between causality and responsibility for the establishment of a causal relationship of responsibility, said the introduction of significant causal relationship when the "equivalence" in reasonable definition, to recognize that, "Tort Liability Act" and does not provide for "high risk liability" for "causation presumption." The fourth part of the "high risk liability" for damages of justice, that to distinguish on the "corrective justice" and "distributive justice" in the allocation of responsibilities in the risk of harm, the offender and the victim to consider the situation and limits of compensation rules, in equity, a good amount of the liability to make it more fair and reasonable, to play a good social benefits. The fifth part of the "high risk responsibility" defenses, the judicial application of the first analysis of the force majeure, for the victims fault, but also the general terms of the specific consideration of exemptions should be taken into account. I hope that through their own analysis serve as a catalyst to promote "high-risk liability" provision of justice for benign operation.
Keywords/Search Tags:Tort Liability Act, "high risk liability", Judicial application
PDF Full Text Request
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