Research On The Contributory Negligence Of China

The contributory negligence principle plays an important role in measuring the recovery in tort and contract. Both its theory and practice are very complicated, but our legislation seems very simple. So the author will explore contributory negligence principle according to the ideas and practice abroad and home with the hope of better understanding and application of contributory negligence.The first part of this paper discusses the conception, characters and the history of contributory negligence. The contributory negligence means we should reduce or avoid injures person's compensation responsibility when the victim has faults to contribute to the loss. Contributory negligence has four characters:the victim suffers loss because of other's fault; the fault of victim; reducing or remitting the compensation; the justise has the power to assign the loss. The contributory negligence had experienced from rule of last opportunity to comparative negligence.The second part of this paper discusses the necessary elements of contributory negligence. The necessary elements of contributory negligence contain three parts:the fault of victim, causation between the conduct of victim and it of offender and occurrence of the damage.The third part of this paper discusses the way of application of contributory negligence. As for the application of contributory negligence, the author thinks the main factor to be considered in the application of contributory negligence is the comparison between the degrees of causation to the loss of the parties involved. Moreover, the degree of negligence also should be considered. Four reasons lead to this conclusion. Firstly, the degree of negligence doesn't determine the amount of recovery, only have an impact on the result that there is need to recover the loss of victim or not. Secondly, it's because the goal of recovery, which is remedying the damage of victim. Thirdly, degree of causation to the loss is related with the degree of negligence closely. Fourthly, this mode can resolve many theortical difficulties.The fourth part of this paper discusses the shortage of our legislation and how we improve it. Our legislation still needs improvement about contributory negligence. We should chang the mode of our current legislation. The standard of share the loss is controvercial. When one part invents to lead to the loss, we shouldn't apply contributory negligence.