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The Methods Of Bearing The Tortuous Liability Of Legislative Interests Balancing

Posted on:2014-04-07Degree:MasterType:Thesis
Country:ChinaCandidate:X J ZhangFull Text:PDF
GTID:2256330425969622Subject:Legal theory
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In facing of multiple conflicts of interests, how can legislator determine the rank amongthe many benefits, to achieve the balance of interests, we advanced a theory of legislativeinterests balance. In the1990s, we introduced the theory of balancing of interests by ProfessorLiang Huixing from Japan to our mainland. The legislative interests balancing make a valuejudgment through expression of interest and interest integration in two stages, and as a result,a new norm of legal appears. As a methodology on the legislation theory, the theory ofbalancing of interests has universal value, The legislation work of Tort Liability Act,especially about the methods of bearing the tortuous liability, just make the balancing ofinterests through the protection of the law in some mutual interests opposed to adjust toachieve stable. The15th,21th and45th article of Tort Liability Act has set ten methods ofbearing the tortuous liability. This text on the basis of introducing the legislative interestsbalancing and its related concepts, through the analysis the relationship between thelegislation of the methods of bearing the tortuous liability and legislative interests balancing,we arrival at the conclusion that our methods of bearing the tortuous liability takes claim ofabsolute right and Infringement of creditor’s rights compresenced, and about the legislation ofthe civil cade, wish to make some help for the methods of bearing the tortuous liability andthe legislation of the civil code.This paper consists of four chapters.The first chapter is part of the basic theoretical research. Mainly about the interests,interests balancing theory and the relationship between the legislative interests balancing andTort Liability Act. We conclude that the legislation of the Tort Liability Act provided a varietyways of bearing the tortuous liability, constituting responsibility relationships, and bearing theresponsibility of what form of liability relations, coordination and balance on a variety ofconflicts of interest, ultimately achieve the balance of the interests of the community. Thesecond chapter explains the feasibility analysis of solving the bearing forms for tort liabilityof legislative theory of interests balancing. By way of comparing and analyzing the bearingforms for tort liability between China and western countries as well as the main focus of theChinese law circle in this field, the authoress draws the conclusion that,under the TortLiability Act,the ten forms of the coexistence of absolute right of claim and the right torequest infringement claims are the very results of the legislative balance of interests. Thethird chapter presents the path analysis of the bearing forms for tort liability of legislativetheory of interests balancing. The chapter functionally analyzes the bearing forms for tortliability and procedurally interprets the legislative theory of interests balancing,by which theauthoress draws the conclusion that it is necessary to solve the problems of the bearing formsfor tort liability using the theory of interests balancing. The last chapter is related to theanalysis of the theory of the legislative balance of interests and the civil code,and firstlydefines that,being an inevitable trend,it is extremely essential that the civil code should existin the legal governance environment of China. On the base of the analysis of theoretical support of the bearing forms for tort liability of legislative theory of interests balancing, theauthoress hopes that what has been raised to the level of the civil code can offer someproposals to the area of the bearing forms for tort liability and even the legislation of the civilcode.
Keywords/Search Tags:The legislative interests balancing, Tort Liability Act, The methods ofbearing the tortuous liability
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