On The Constitutive Elements Of The Un-internuncial Joint Tort

The Un-internuncial Joint Tort is a very important subject which is worthy offurther study. The concept and constitutive elements of the Un-internuncial Joint Tortare various and controversial both in academic and judicial practice. The GeneralPrinciples of the Civil Law of the People’s Republic of China (hereinafter referred toas the “General Principles of the Civil Law") and the Judicial Interpretation ofPersonal Injury made by the Supreme People’s Court do not perfectly regulated thetort style, they just compared the Un-internuncial Joint Tort and the InternuncialJoint Tort from the perspective of behavior combination modes and liabilityassumption. So the core of the past disputes was the behavior combination modeswhich were addressed in the mentioned judicial interpretation. The article11andarticle12of the Tort Liability Law of the People’s Republic of China (hereinafterreferred to as the “Tort Liability Law") are universally admitted as regulations of theUn-internuncial Joint Tort law in China. Yet the Tort Liability Law did not make aclear announcement of the constitutive elements also. At least the following doubtsand divergences exist in the academic and judicial practice: firstly, why don’t makeclear references of the un-internuncial element in the two articles? Secondly, what isthe judging standard of the subject element of the Un-internuncial Joint Tort? Thirdly,what on earth are the behavior combination modes in the two articles? Fourthly, howto understand "the same damage" provided in the articles? Fifthly, what is theapplication border of the five articles in the joint tort system? Sixthly, why jointliability is applied in article11on the background of un-internuncial? To properlyanswer these questions is the only way out to clarify the constitutive elements of theun-internuncial joint law.The author has made a clear up and analysis of the documents about theUn-internuncial Joint Tort, which were published after the enactment of the TortLiability Law and the particular judicial interpretation. Through semanticinterpretation, systematic interpretation and historical interpretation, the author has formed an independent understanding of the constitutive elements.The subjective element of the Un-internuncial Joint Tort is the absent ofcommon meaning. As for the common meaning refers to joint intention or jointfaults or both, disputes exists among the academic when they discuss article8of theTort Liability Law. Meanwhile, the subjective element has already been blended inthe two articles, so this paper does not make an arrangement of this element.The subject element of the Un-internuncial Joint Tort is the expression of “twoor more persons” written in the articles. Here the implementation of the “persons” isthe subject of legal liability, rather than the subject of behaviors.The action element of the Un-internuncial Joint Tort is that all the behaviors arecombined together accidently. What’s more, the combination mode of the twoarticles various by the feature of combine directly or indirectly, which is also a fataldifference of the two articles.The damage element of the Un-internuncial Joint Tort is “the same damage”mentioned in the articles. The integrity and identity of the damage are the twoessential elements of judging “the same damage”.The causality element of the Un-internuncial Joint Tort is whether “the samedamage” can be totally caused by each tort action. The difference betweencumulative causation and partial causation is a significant border when applying thetwo articles.By studying the constitutive elements of the Un-internuncial Joint Tort, theauthor has tried his best to clarify the scope and sequence when applying the twoarticles. At the same time, this paper has also clarified the border between article11and article12after demonstrated the behavior combination modes, judging standardof the same damage and the law of causation of the two articles.