The Research On The Concept Of Damage In Tort Law

Damage is an important concept in tort law, is the core of torts, and even can besaid that the whole tort law is all about the determination of damage. The traditionaltheory stresses from the scope of damage volume level to identify damage.In this wayof thinking,there has been Differenzhypothese theory and Organization theory aboutthe nature of damage. These theory is put the cart before the horse. It causes a seriousviolation of people’s idea of justice in some cases by the way of determinationwhether damage exsists or not by the ‘quantities’of damage. And with the loss of use,the biological damage and other new damage morphology recognized by judicialpractice,because of the damage morphology itself lacks of the foundation of interestcomparison,from the scope of damage volume level to identify damage can only becut one’s feet the Procrustean bed.In the face of the new damage morphology,the old‘damage’does not know what course to take.Based on this,this article thinks theperspective of observing damage should be changed,the damage just as the elementsto consider the establishment of liability.Damage is a legal concept rather than thenatural concept.In this understanding,this article agrees with the theory of the normdamage.Under the theory of the norm damage,the trial of damages should be dividedinto the establishment of liability and the scope of compensation for damage twosteps.And on this basis,to further differentiate the concept of damage, the monetaryassessment of damage and the scope of compensation for damage.In the first part of this paper,damage,invasion and loss are differentiated. Thisarticle clarifies these lexical differences, helps us better understand damage from thelegal text.As well as, it lays a foundation for the fifth part of this article.In the second part of this paper,it introduces the historical development of theconcept of damage in tort law. After analysis from the Roman law to modernEuropean law on the concept of damage, this article sums up the development trend ofdamage, i.e.the abstraction of the expression of concept of damage and extension ofthe expansion of the damage.Also it makes a foundation for the fourth part of thepaper.The third part of this paper describes the transformation of the modern societyfrom the traditional society from the science and technology, economy and ideologyfields, highlights ‘the risk’ of the modern society. In the face of ‘risk society’,the reaction of modern tort law is the emphasis’s transformation from safeguard freedomof action to relief of victim. Based on the maximum relief to the need, damage hasbecome more important in tort law.PatrⅣof the paper is the focus of the full text.After analysis of features andshortcomings of Differenzhypothese theory and Organization theory,this paperconsiders the defects of its research perspective is the main cause of defects ofDifferenzhypothese theory and Organization theory.They are both lead to understanddamage from the perspective of the scope of itself. These theories are put the cartbefore the horse. The identification of damage is a valuable judgment rather than apurely technical judgment.Because the valuable judgment is replaced by technicaljudgment, some damage which should be considered as ‘the damage’ from our idea ofjustice can not be identified ‘the damage’in tort law.Based on this,it should beconverted cognitive impairment perspective,the perspective of the establishment ofliability rather than the perspective of the scope of liability,and this article supportsthe theory of norm damage.The last part of this article brings us to the real leagal text from the pure theoricalanalysis.It analyses the characteristics and defects of ‘the damage’ of China’s TortLiability Law.In fact,the main body of China’s Tort Liability Law is the law ofdamages.The claim for damages is completely different from the preventive claim inthe Elements.It causes chaos of legal system to bring completely different claimsunder the basic term. So the basic terms of China’s Tort Liability Law should beamended to ‘The person who violated the civil rights of others,and causeddamage,shall assume liability for damages in accordance with this Law’.And thepreventive claims should be separately centralized written.It should be reasonablyarranged in accordance with the different nature of claims.