Discussion On Contributory Negligence Practice

Contributory negligence, as an important rule of indemnity in contemporary civil law, is a system that, in the obligation of compensatory damages, of which the victim has comparative negligence for the damage occurrence or expanding, the court may reduce or exempt the offender’s liability for damages in its terms of reference according to certain standard. It is consistent with the requirements of the principle of taking full responsibility for one’s own sake, and reflects the value pursuit of the spirit of fairness in the law.In tort law, the applicable contributory negligence to mitigate or exempt the offender’s liability shall comply with its constitutive requirements:the victim must have a fault; behavior of the victim must be the reason of damage occurrence or expanding; behavior of the victim must be misconduct; the victim must have contributory negligence capacity. For applicable principle of attribution, contributory negligence is not only applicable to the general torts with the principle of fault liability, but also applicable to the special torts with the principle of liability without fault. For the third person at fault having specific relationship with the victim having contributory negligence for damage occurrence or expanding, whether applicable to contributory negligence, in practice, there are several scenarios:if the guardian of a person without or with limited civil capacity, does not do his/her duty of guardianship, causing damages to the person under guardianship by others, contributory negligence should be applied to reduce the liability of the perpetrators. Employees in the process of carrying out their duties cause the employer’s property damage by other’s infringement, if the employee is at fault, the fault can be considered as the employer’s negligence applying to contributory negligence. If the infringed is dead, whose close relatives as indirect victims request the infringer to assume the tort liability, contributory negligence of the direct victim shall be considered, so that the liability of the infringer may be reduced. For the methods of relieving offender’s compensation with respect to the specific cases, in general tort cases, taking the method of combining comparative fault with comparative causative potency, while in special tort cases with no-fault liability, simply taking the method of comparative causative potency. Contributory negligence, which shall be applied with limits, is limited to the situation of the victims with gross negligence in the no-fault liability occasions. And contributory negligence is not applicable to the circumstances of damage caused by the offender due to intent or gross negligence.From the theory of contributory negligence, this article analyses the constitutive requirements, applicable scope and applicable methods of contributory negligence, boils down to the discussion on how to apply the system in the judicial practice, based on the laws and regulations in China, with reference to foreign legislation and legal precedents, and focuses on solving the waiver proportion of compensation liability of the perpetrators corresponding to the victims’different fault types.