Research On Contributory Infringement’s Commonality

Contributory infringement has been a major issue in the field of tort law. Theoristsand Practitioners have never stopped debating since joint tort system was produced.the most important thing is the nature of contributory infringement, which is called "commonality ". Different understanding of the "commonality" will result indifferences of the identification of joint tort. With the social development of societyand the improvement of science and technology, new types of joint tort occurrs, andmake the original Contributory infringement theories begin to shake. All kinds oftheories abound, and there is no uniform standard. Before the promulgation of the"Tort Liability Act", China’s "Civil Law" and relevant judicial interpretations alreadyhave simple rules of Contributory infringement, but the "Tort Liability Act" seems notto specify our joint tort system, and even makes it more fuzzy variable. In this case, ithas great significance that we explore how to apply the "Tort Liability Act"contributory infringement provisions. In this paper, i want to make a shallowdiscussion on joint cort, depending on our joint tort theory and practice of thecombination, as well as foreign legislation, and i hope to help for the understandingand application of the "Tort Liability Act". Many issues are not yet mature, i hope forany criticized guidance.This article consists of the following sections：The first chapter starts from some typical cases, and asking questions. Before theintroduction of the "Tort Liability Act, our courts for contributory infringement’sidentification, mainly based on the provisions of personal damage compensation judicial interpretation, which divides into one on common-fault and the other onbehavior directly combinating, and excludes the behavior indirectly combinating.After the introduction of the "Tort Liability Act, and there is no specific provision ofcontributory infringemen. So how to identify contributory infringement has become aproblem. In the final analysis, it is a different understanding of the nature ofcontributory infringement.The second chapter is the theory and practice of "Commonality". This chaptersorts out all kinds of theories on "commonality", and analyse the legislation of othernations with the perspective of comparative law, and then make a comment. there aresubjective doctrine, objective doctrine and compromise doctrine. From the point ofview of national legislation and protecting the interests of the victims, the subjectivedoctrine can not be solely responsible for contributory infringement yet,and objectivedoctrine can not solve all the problems too. so we should using the subjective doctrine,and the objective doctrine at the same time.The third chapter is about the reasons for the development of the theory. thedevelopement of "Commonality" theory, in essence, is the development of social life.It also makes the imputation principle of tort law and protecting the interests change.so "commonality" has shifted from subjective to objective. However, in the field oftraditional contributory infringement, we still have to adhere to subjective doctrine.This also explains the reasonableness of using subjective criteria and objective criteriaat the same time.The forth chapter is about the analysis and recommendations on our"commonality". based on the above conclusions，it will d a suitable standard forcontributory infringement in our "commonality", and then give advices totheunderstanding of Article8of the "Tort Liability Act".