An Analysis Of The Contributory Negligence And The Influence Of The Faults Of Third Party

As a usual instrument of deducing the responsibility of infringers, the rule ofcontributory negligence is often applied in the decisions of courts. In the legislation,the rule of contributory negligence is explicitly regulated in the Tort Liability Law ofPeople’s Republic of China. Researches on this rule are also quite abundant, and theyprovide certain standard for the appliance of this rule. There is almost no doubt thatthe rule of contributory negligence shall be applied where the injured person hasnegligence. However, the appliance of this rule becomes doubtful when a person whohas some kind of relationship such as employment with the injured person has faultsin the occurrence of injure. Although this issue has been discussed in theory andpractice, the discussion is not so thoroughgoing. Therefore, in this article three typicalcases are selected to be analyzed, and then three problems will be solved: whetheremployer, as injured person, shall bear the responsibility of contributory negligence ornot for damage which is arisen by the faults of his employees and infringers; whetherthe wife, as injured person, shall bear the responsibility of contributory negligence ornot for the damage which occurred by the faults of her husband’s and infringers;whether the child, as injured person, shall bear the responsibility of contributorynegligence or not for the damage that is arisen by the faults of his parents andinfringers. In this article some foreign resolutions are taken as examples for theresolutions of these cases, and after analysis, some possible approach to the solutions of these cases are provided. Firstly the author analyzes the constitutive elements ofcontributory negligence, and then points out the similarity and resemblance betweentorts and contributory negligence in these elements. The finding of Obliegenheitmakes it possible to build the constitution in the liability for contributory negligencelike liability for torts. In accordance with the aforesaid views, the liability forcontributory negligence shall consist of three parts: damage occurred by thecontributory activities of the injured person; the violation of Obliegenheits; thenegligence to himself. The core of contributory negligence is the defining ofObliegenheits. In this process the scope of activity freedom of the injured person andthe liability of infringer must be carefully weighed. On this basis, the Author makesthe conclusion that the employer, as injured person, shall bear the responsibility ofcontributory negligence for damage which is arisen by the faults of his employees andinfringers; the wife, as injured person, shall bear the responsibility of contributorynegligence for the damage which occurred by the faults of her husband’s andinfringers, not for the reason of contributory negligence but other reasons; the child,as injured person, shall not bear the responsibility of contributory negligence for thedamage that is arisen by the faults of his parents and infringers.