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Article 24 The Tort Liability Act The Application Of The Fair Share The Loss

Posted on:2013-02-04Degree:MasterType:Thesis
Country:ChinaCandidate:M DongFull Text:PDF
GTID:2246330395950030Subject:Law
Abstract/Summary:PDF Full Text Request
Through the discussion about the Article24of Tort Liability Law of the People’s Republic of China (TLLPRC), and the relative legal explanations of the Supreme People’s Court and the experts, we recognize that the Article24of TLLPRC is not a criterion of liability in our tort liability law. It is a rule about sharing the loss under a specific situation. Therefore, it is called "Fairly Share Loss Rule (FSLR)".The Application Elements of FSLR include:1. Do not belong to the special tort fields, and cannot be applied to the principle of fault liability and no fault liability principle.2. Neither the victim nor the actor was at fault in the occurrence of an injury3. Has caused serious property damage.4. There’s a cause-effect relationship between the actors’behavior and the loss.5. If not share the loss by both parties, it is not fair.Because the specific situations of application about FSLR are not strictly determined, the phenomenon of abusing FSLR is very obvious in the judicial practice. Many judges apply the Article24of TLLPRC just only considering the fairness without seeking and applying other more suitable legal provisions. People feel the security of their assets threatened, when they still have to share loses just because of their financial situation even if they do not have fault. Considering that we must apply FSLR more cautiously, I try to propose in my own view the specific situations of application about FSLR and improve related systems.The first chapter is a general introduction of FSLR, including the concept of FSLR and other relative legal systems.The second chapter analyzes the discussion in the legislation and the current regulations of the FSLR. Through the analysis of the attitude about FSLR of the experts, I try to confirm the nature of the FSLR. Through the discussion of the legislators, judges and the social public in the legislation, and the legal explanations of the Supreme People’s Court and other scholars, I try to analyze the application elements of the FSLR.In the third chapter, on the basis of analysis of experts and scholars, I try to clear the application elements of the Article24of TLLPRC. Furthermore, I try to strictly limit the situations of application of the FSLR, by analyzing the judicial practices.In the fourth chapter, in order to avoid abusing the FSLR and use the FSLR cautiously, I mainly propose improving some related systems, including social security system and commercial insurance. Furthermore, I try to propose the applicable relationship of social security system, commercial insurance and the FSLR. Only under such circumstances can people feel free, and can not only relieve their financial burden, but also form a good social order.
Keywords/Search Tags:Fair share loss, Accident, Social security systems
PDF Full Text Request
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