Equitable Liability In Tort Law

Equitable liability in tort law is an important law which along with the theoryand practice in the dispute from the produce at the beginning, all kinds of schoolsand many scholars constant exploration, but equitable liability theory still seems tomask a veil attracted more people to the thesis. Equitable liability whether the TortAct to be adopted? Whether equitable responsibility to clearly defined? Whetherequitable liability as an attribution principle of tort law of liability? Originally,"tortlaw" promulgate is an opportunity, legislators can show the attitude of equitableliability by the form of legislation, and then, to a certain extent, quelling the argument,clearing the use of equitable liability in our country. But the provisions about theequitable liability in "tort law" are still vague, as theoretical circles can not be giventhe best answer, legislators in turn argue solution returned to the theoretical circles.However, equitable liability dispute for a long time, to solve problems without delay,before the introduction of judicial interpretation, there is a need to clear the disputedissues. Starting from the dispute, through many viewpoints of research andsummarize, the author try to clear equitable liability and put forward my ownunderstanding about it. Equitable liability of both theoretical significance but alsoprovide a reference for the judicial practice. There are larger differences in manyaspects such as terms of meaning, legitimacy, positioning, or the application. Fromthe four issues, I supply my contribution for the right application of equitable liabilitythrough answering the four issues.The full text is divided into four parts:The first part dealt with the meaning of equitable liability. Concept、characteristics, emergence and development are discussed.For the meaning ofequitable liability, in our country, the basically is quoted the concept of the currentlaw. But I think this is wrong paste, is the lack of accuracy and distinguish.We havethe necessary deepening of the meaning in order to avoid the understanding of the deviation in other issues of equitable responsibility. At the same time, equitableliability is imported, starting from the etymology, to deeply understand equitableliability, thus gives the definition of myself.The concept is abtract, so we need to study the features of equitable liability.Characteristics come from the concept, so it can further deepen our correctunderstanding of equitable liability. Through the discussion,on one hand, I answerthe related questions; on the other hand, lay a foundation for understanding of others.Probe into the development process on equitable liability arising, to grasp thedevelopment of equitable liability, more accurate understanding of equitable liability.The second part is the legal basis of equitable liability. After clearing the concept,an important question is the legitimacy of equitable liability itself. Some scholarsdeny the independent significance of the existence of equitable liability and itsrationality, but my view is not. I starting from the foundation of equitable liability toprove the necessity and the rationality of its existence; departure from the equitableliability and the principle of equity and no-fault liability, to prove their independence.Through three issues of discourse, the author proved the legitimacy of the equitableliability.The third part is about the position of equitable liability. It is the core of thispaper, the problem is the most controversial on this stage and paid most attention onit. The controversy is that whether equitable liability is an attribution principle in the"tort liability law" or not. I think, equitable liability is not an attribution principle inthe "tort liability law" but only a loss allocation rule. I starting from the imputationprinciple, discussing its concept and function, contrasting with the compensationprinciple, so as to the perspective of the theoretical foil. Second, I provided eightreasons to prove the view that " equitable liability is not a imputation principle in the"tort liability law" in our country.” Eight reasons” is the main argument for my point.That prove my view in all angel; Finally, I qualitative equitable liability. It is just aspecial kind of loss distribution rules. The author in this paragraph，through summaryanalysis，clear the real property of equitable liability.The fourth part is about the application of equitable liability. In order to makeequitable liability play a bigger role in judicial practice,I shall give a further discussion on the application of the equitable liability. On the application, I proceedfrom the three questions: First is the applicable conditions. Equitable liability, only toaccord with the five conditions which are ruling out fault liability and no-faultliability application, actual damage, laws, causal relationships, economic conditionsmay be applicable. The second is the judge of discretion method. When the judge useequitable liability to share the lose, not only to make sure that there are many subjects,but also pay attention to the application of mediation means, so as to better achievecase fair. The third is that concrete the scope of equitable liability in our country. Thisis also consistent with the author’s own view. The author from the theoretical point ofview, combined with the current laws in our country, limite the scope of equitableliability to four aspects, and analyses article32th paragraph2rd which is the mostcontroversial. It makes the application of equitable liability more reasonable.The core point of this paper is that equitable liability is not an attributionprinciple in the "tort liability law" but only a loss allocation rule. It’s connotation,function and application scope can not excessive expand, otherwise it will cause theentire tort law system to be not harmonious. At the same time, equitable liabilityabsolute negative view is intolerable, equitable liability has its own rationality, itsexistence has necessity at the present stage. Equitable liability can not be completelyabandoned at the present stage, or it is bad to achieve the real fair.