The Conceive Of The Unified Determination Method Of Tort

From the history development situation, the evolution of the cognizance of tortexperience from the unified principle which is fault liability to the diversifiedprinciples which blends into no fault liability, strict liability, danger liability and fairliability. The root of this kind of transformations that the original the scope of theunified imputation system is too narrow, so that a part of damage can not get thereasonable compensation.However, the diversified principles made up for loopholesof the unified principle, also lead to the generation of logic contradiction between thedifferent principles. This thesis tries to establish a unified cognizance system tocompensate the illogical, also to prevent the original holes which comes from theprimordial unified principle.According to the comparison of the diversfied and the unified imputationmethod, the inference method which evolve from the internal priciple to the outsiderules must be used to resolve the unclear logic between the diversified principles, thusa new unified imputation system are needed to establish. By the means of the "firstprinciple" threory analysis and the comparison of the inductive and deductive logic,in the legal principle logical source, the deductive logic which from the "firstprinciple" is better than inductive logic which from the summary phenomenon. Thisthesis begin with the core function of law, anlyze the core contradiction of the tort,measure the value of the freedom to act and the civil rights, to determine which kindot behaviers should be cognized as the tort. On the basis of the classical theory ofnatural law, liberalism, utilitarianism and economics principle of costs and benefits,the determination of tort should fellow with the standard that the "perdiction" ofconsequence in the actor’s "perdiction ability". Because the objective defects of the "rational person" principle, the "rational person" model which joined the "actorfeatures" can be a more reasonable determination method. Finally, based on theanalysis of the contradictions of tort, reach the concept of "new fault" and theresponsibility system of "new fault". After the comparision of the "new fault" liabilityand the original "fault","no fault","fair" liability principle, the "new fault" liabilityone not only can contain the original "fault" and "no fault" liability liability principle,but also can become the source of the original principle. And the "fair" liabilityprinciple essentially conflicts with the "new fault" liability, thereby the "fair" liabilityprinciple should not be used to determination method of tort. Although "fair" liabilityprinciple can not be used as the determination method, it can be used in the"compensation" problem. Although, in the nature, can not be determined as the tort,according to the "fair" concept, the both parties without the fault should share thedamage averagely.Paper is divided into four parts, the full text of about25000words, the maincontent of each parts as follows：The first part: The basic tort theory and the research purpose. This part discussedthe basic concept of the tort and tort law, as well as the three tort liability principlewhich is fault liability, no fault liability and fair liability. This part also broughtforward to establish a new unified tort imputation system as the research purpose.The second part: The discussion of the unified and diversified tort liabilityprinciple. This part expounded the development history of the tort liability principles,pointed out the tort liability principles’ evolution of history trend which turned fromthe unified principle to diversified principles. This part also analyzed the defect of theoriginal unified and diversified imputation system, and how to set up a newimputation system can resolve the problems.The third part: The discussion begins with the core function of law, use thereasoning method which is the evolution from internal principle to external regulation,through the value measurement of the tort core contradiction, analyzed the nature andcharacteristics of the tort, argued it is rational with the actor in "prediction ability"range of behavior consequences "predict" for the standard to cognize the tort. As well as pointed out the problem of the “Reasonable Person” principle which to Judgewhether the actor can "predict" behavior consequences and build a more close to theactor’s reasoning model of improvement of the idea.The forth part: Through the analysis of the tort core contradiction, combinedwith the actor in "prediction ability" range of behavior consequences "predict",established a new "fault liability" system as a new unified method of tort cognizance.And through the comparison of the new "fault liability" system and the original "faultliability" and "no fault liability" principle, prove that new "fault liability" systemincludes the adjusting range of original "fault liability" principle and "no faultliability" principle, as well as testify that the new "fault liability" system is theessential source of the original "fault liability" and "no fault liability" principle. Inaddition, the theory of the new “fault liability” system could expose the defect of the“fair liability” principle as the cognizance method of tort.