Research On The Construction Of The Theory Of Imputed Contributory Negligence

The system of imputed contributory negligence is a special case of the system of contributorynegligence. There are abundant cases of imputed contributory negligence in the judicial practice ofChina, while it is almost blank in legislation and scholars with divergent opinions have notachieved consensus yet. By using methods of comparative analysis and case analysis, the paperstarts with the definition of imputed contributory negligence, then introducing the jurisprudentialbasis as well as the situations of legislation and practice at home and abroad. Besides, by analyzingthe scope of application, the constitutive requirements, the types and the legal effect, the paperproposes rationalization in order to set up a relatively perfect system of imputed contributorynegligence.The first chapter gives an overview of imputed contributory negligence. At first, the definitionof imputed contributory negligence is presented on the basis of analyzing previous scholars’opinions. Then, it points out that the jurisprudential basis of imputed contributory negligence lies infair value and vicarious liability. At last, it summarizes the shortages in legislation and practice ofChina by comparing the situations at home and abroad.The second chapter demonstrates the scope of application of imputed contributory negligence.On one side, it can be applied in the field of contract liability, including the areas of liability forbreach of contract and contracting fault liability. On the other side, it differs in some special areasof the field of tort liability. In the special tort field, it can be applied in the area of no-fault liabilitywith certain tilt, and in the field of compensation for personal injury and compensation for mentaldamage, just direct victim’s contributory negligence can be applied because personal injury andmental damage are more harmful to the society and more irretrievable.The third chapter describes the constitutive requirements and the types of imputedcontributory negligence. Firstly, it makes an analysis of the constitutive requirements. The subjectelement is the third person, and the subjective element is the fault of the third person. The objectiveelement includes misconduct, the causal relationship and the ability of contributory negligence.Secondly, the paper analyses three types of typical case of imputed contributory negligence, which are legal representative’s contributory negligence, the employees’ contributory negligence and thedirect victims’ contributory negligence respectively.The fourth chapter reveals the legal effect of imputed contributory negligence. The paperintroduces the dispute by presenting three doctrines of contributory negligence and proposes theopinion by dissecting deeply. Moreover, the judgment of the degree of fault and causation is putforward, followed by the analysis of the special claim of pursuing recovery to the third person.