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On The Consent Of The Victim In The Tort Liability Act

Posted on:2013-12-20Degree:MasterType:Thesis
Country:ChinaCandidate:L N WenFull Text:PDF
GTID:2256330374474402Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The victim consent originated from Roman law, Ulpianus wrote in the47thvolume of the Digest or Pandects of Justinian,“What generated according to thewill of the victims, is not illegal.” After a long period of development, itgradually occupied an important position in the legal systems of various countries,and was embodied in their Codes. The Chinese existing laws have not yet definedon the victim’s consent clearly, of course, they will not be able to provide thebasis for the victim’s consent as a defense.Target of the victim consent should be the results of the perpetrator’s action,which are summary rather than specific.The legal nature of the victim consentshould be a kind of legal action, but in the specific application, it has someplaces different from legal action, so in the judicial practice we should makea specific analysis combined with the different cases, not be fully applicableto the relevant provisions of legal action. The consent of the victim is consistentwith the assumption of risk in system value and legal effect, but from thedevelopment process of the Anglo-American law, the assumption of risk has anadventure to be hugely magnified in practice, the system itself is constantlyabsorbed by comparative fault, so the assumption of risk should be included inthe victim’s consent.The elements of an effective victim consent should include: the people of consent must have the capacity of consent, the meaing show is true, and the consentdoes not violate the principle of public order and good custom. Among them, thecapacity of consent can not be completely in accordance with the relevant lawsand regulations of the capacity of legal action to regulate, whether people havethe capacity of consent, the judgment should be made by combining with cases inthe specific practice. A consent which is made because of the fraud or duress,should not have legal effect. Meanwhile, the victim’s consent should not be inviolation of the law to force provisions, nor in violation of the principle ofpublic order and morals, otherwise it shall be null and void.The presumption of the victim’s consent is that when the victim can not makea consent, in order to protect its interests, and laws allow other people topresume its consent. The presumption of the victim’s consent has some placesdifferent from the victim consent. The theoretical basis of the presumption ofthe victim’s consent is the interest’s balance. The presumption of the victim’sconsent mainly lies in the types of specific relationships, convention behaviors,and protection of the superior benefits.Besides, in victim consent, if the legalbenefit is different,the path of presumption following is different accordingly.Especially in cases involving the right to life, if a case involves the protectionof the right to life, the presumption of absolute exemption should be appliedto it.
Keywords/Search Tags:victim consent, legal nature, elements, presumption
PDF Full Text Request
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