The Specific Problem Investigation Of Latent Poison Infringement

Latent poison infringement is a new type of infringement, compared with the general tort, it has the perpetrator that it must be in contact with poison, slow damage process, a long incubation period, the breadth and severity of the damage results perpetrators, uncertain causality features, these features make our most provision on general tort law can not applicable. Currently China has no legislation on the issue of infringement of latent poison, only scattered in "Tort Liability Act","Product Quality Law" and "Environmental Protection Law" three laws, however, these provisions are aimed primarily at the poison no latency period or shorter latency period that create damage cases, it is difficult to apply in the latent poison infringement. And because the characteristics of latent poison infringement, making it difference from the general tort at responsibility form and other aspects of the statute of limitations. Therefore, we need to conduct such specialized research on this behavior, in order to compensate for the lack of law.In order to analyze latent poison infringement, we must first clear the specific concept of poison, only clear the specific scope of the poison that can further define the scope of latent poison infringement. The defining of the scope of poison on toxicology can provide a basis for defining of the poison in the law. But due to this behavior must bear strictly responsibility, it caused the scope define of the poison in the law is much smaller than the define on Toxicology. But specifically to determine it whether belong to the latent poison infringement, you need to see whether it accord to the provisions of its constituent elements, one of the most important is the question of causality identified. Respecting the causation theory of infringement, there are many differences between the two legal systems. Civil law usually use correspondence theory of causal relationship, common law generally implement the "Two Step", that is distinguish the fact causation and the legal causation. About latent poison tort legislation the earliest and more mature legislation is the provisions of the U.S. law, and the U.S. law implement the "Two Step", then whether the "Two Step" is ability to solve the complex causation of latent poison infringement problems? Common law scholars mostly dedicated to the research on the legal causation thus ignoring the problems of the fact causation, but the latent poison infringement are just on the opposite, because of the long incubation period of toxic tort, results in it much more complex than the general tort to identify the fact, many questions need to be addressed. Therefore, the "Two Step" does not solved the problem of causality, on how better to solve this problem that need scholars to be further explored. About the infringement defenses of latent poison tort, provisions of our law did not reflect its particularity, no infringement of its defenses with the general distinction. But the U.S. experience in this regard is rich, through long-term jurisprudence that summarize many special defenses on latent poison infringement, we can learn from American law while identifying specific defenses according to China’s national conditions.This paper includes four parts:The first part is to define the concept and the type of latent poison infringement, in order to define the specific scope of this type tort; The second part is the constitution of latent poison infringement, first introduced two legal theories on the constitution of latent poison infringement, because this behavior is usually use the principle of no-fault, so on the constituent elements of latent poison infringement has the dispute of two main elements and three elements, the focus is on whether to require illegal acts. In latent poison tort it requires special to discuss is the fact of define of damage and causation issues, due to the hidden nature of the infringement make it difficult to define the fact, so it need implement tort change from simple compensate the damage to reasonable allocation of risk and harm. The third part is defenses infringement of latent poison tort, because our law has no system requirements on defenses infringement of the latent poison tort, just scattered in various single laws, defenses infringement are no exception. Each single law does not reflect the special nature of the infringement latent poison, but the U.S. experience in this regard is rich, we can learn from American law while identifying specific defenses according to China’s national conditions; The fourth part is the limitations of action on latent poison infringement, Provisions of our law especially the longest duration of protection are not applicable on the latent poison infringement, we can still learn from the experience of other countries by extending the relevant statute of limitations to protect the interests of the victim.