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Research On The Cognizance And Liability Of Joint Tort

Posted on:2015-03-16Degree:MasterType:Thesis
Country:ChinaCandidate:L MiaoFull Text:PDF
GTID:2266330428966428Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The joint tort system originates from the late Qing Dynasty, it has stipulated thejoint and several liability of the joint tort. But, this code has not implemented. Thegeneral rule of the joint tort has not appeared until the general principle of the civillaw has published. The Tort Law was published in2009, from then on, the act of torthas became independent of the debt law system. The second chapter of the “TortLiability law” has defined the joint act of tort. At that time, the legislative system ofthe joint tort system has basically formed.The key to identify the infringement is the elements of the analysis of thecomposition of joint act of tort. Among the studies, the main issue is about thecomprehension of ‘commonness’. In the academic field, it can be divided into threetheories: the Theory of Subjectivity, the Theory of Objectivity and the Theory ofCompromise. In the civil law countries, joint tort of German Civil Law, it’s principleis the Subjectivity Theory. The joint tort system in Japan is not as clear as in German.Japanese Civil Law did not separate the component and liability of joint tort into twodifferent clauses. It’s opinion on ‘commonness’ is the Objectivity Joint Theory.French Civil Code has not established the provisions of joint tort, but through thevarious schools of the theories, and the cases we can find they solved this problem bydiscussion of causality. In common law countries, the author selected United States asmain object in this part. The joint tort system of U,S, has used the Subjectivity JointTheory, need common scheme. Now, many U.S. states have abolished the jointliability. In our country, there are still have many scholars argue about how to identifythe ‘commonness’. Mainstream is ‘Common Fault Theory.Joint liability is a kind of strict liability. As kinds of joint tort become more andmore complex, so we can’t use joint liability unquestioning without the actors’benefits. How to define the joint liability is not only a question about the theory, but also a judge based on the value judgement of the law and social equity, This thesisanalyses the liability of joint tort system through by a comparative analysis of nationallegislative model and the legislative background in our country, combine with theproblems in the practice of the joint tort cases, The author make a thorough inquiryabout the liability of the joint tort system.This thesis adopts a case to study. Analyze the significant difference in the cases,expound my own opinion. How to affirm the joint tort when victims’ interests areaggrieved by several people; How to affirm the causality in different form of the jointtort; How to distribute the burden of proof; How to find the best way to solve theproblem of paying for the damages of victims. Through by studying the following twocases, put main issues forward, conclude the characteristics and take systematicanalysis, finally offer proposals of the responsibility for the problem of cognizanceand liability of joint tort.
Keywords/Search Tags:joint tort, causality, un-intentional jointtort, joint liability, subjectivity joint, theory Objectivity, joint theory
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