On Defense Excuse Of Tort Responsibility

Defense excuse is an important part of tort law. However, theoretical studies andjudicial attention toward it are not sufficient. The establishment of defense excuseinfluences the establishment and scope of tort responsibility, however, the content ofdefense excuse in Chinese tort law is simple and incomplete. Therefore, this paperputs forward some viewpoints from above perspective. The whole paper includesthree parts: introduction, main body, and conclusion, and the part of the main bodycontents four chapters.Part1is introduction, which expounded present situation of theories regarding todefense excuse and other relative concepts, point out some controversies in need ofsolution concerning defense theory in tort law.Part2is main body, which contents four chapters. Chapter1differentiates themeanings of defense excuse, exemption excuse and illegal negates responsibilityexcuse，and in the meantime, classifies the different levels in the defense excusesystem into the negates responsibility excuse and the scope of negates excuse after theestablishment of responsibility，which accordingly produce different legal effects, thatis the disestablishment of responsibility and the exemption after the establishment ofthe responsibility. After the different classification above, it’s necessary to combinewith specific excuse to make corresponding analysis. Due to limited space, this paperchoose three excuses which are highly controversial in the application, that is, forcemajeure, the fault of victim，assumption of risk and the consent by victim. Chapter2elaborates force majeure, definitions of which vary tremendouslyamong different countries. By carefully reading the statements about defense excusein the judgments, we will be able to understand the judgment standards, and putforward the doubts regarding to the legal effects. Through the comparative law studies,we will be able to resolve the doubtful questions,figure out the legal effects ofrelative concepts, such as force majeure, intervening factor，usual incident and so on,and thereby indicate that force majeure belongs to the negates responsibility excuse.Chapter3elaborates the fault of victim, which includes fault caused by victimalone and fault caused by victim and injuring party. The controversies mainly lie inthe judgment of the fault standards, the victim’s capacity for responsibility，and thedifference of the legal effects between the above two types：the former belongs to thenegates responsibility excuse，while the latter is the exemption after the establishmentof the responsibility，which may have more discretion.Chapter4elaborates the assumption of risk and the consent by victim, which areno rules in Chinese tort law. This chapter compares the meanings and legal effects ofthe two kinds, and puts forward the argument that assumption of risk does not belongto independent excuse, instead, it belongs to the specific situation of fault that causedby victim and injuring party, and will apply the effects and affect the subsequentliability. The consent by victim belongs to negates responsibility excuse, andtherefore, it cannot constitute tort liability.Part3is conclusion, which put forward a research pattern in the defense area byanalyzing the above three defense excuses, with the hope that the domestic academiawould pay more attention to the tort defense, make the defense excuse more regulated,clearer, and promote the understanding of the tatbestand of tort responsibility inChinese legal system, in order to well balance the rights of two parties.