A Research On The Application Of The Proportional Liability In The Tort Of Multitudinous Unknown Causations

Aiming at the issue of unknown causation which includes the joint dangerous activity, the respective torts without meaning connection and high altitude parabolic behavior, The Tort Liability Law formulates the rule of responsibility sharing. In order to provide legal relief to the victims, the Tort Liability Law takes advantage of the joint liability, the average responsibility and supplementary liability. This reflects the inclination on the protection of victims. But we will have two doubts by analyzing the cases of the realistic life and summarizing the problems. The first doubt is the query of causal relationship. The second doubt is the query of responsibility sharing. The query of causal relationship is largely from the doubt of the thinking method in “all or nothing”, and reflecting the classification of causation on philosophy or logic. It makes us think about whether there is fourth type of causation which is the causation of non full and non necessary condition. The query of responsibility sharing is largely from the fairness to investigate the joint liability and the average responsibility. It hopes that we can adopt the proportional liability to balance the interests of both sides and solve the problem of the lack of fairness in joint liability and the lack of basis in average responsibility. In order to harmonize the freedom of action and the protection of safety, and balance the just interest between the victim and doer, the tort of multitudinous unknown causations should apply the “Proportional Liability” to making the principle of fairness and justice to be reflected in the responsibility sharing. Proportional liability can be divided into generalized proportional liability and narrow proportional liability. The proportional liability which is applied to the tort of multitudinous unknown causations mainly refers to the narrow proportional liability. The application of proportional liability should be on the premise of proportional causation.The significance of the application of proportional liability which is applied to the tort of multitudinous unknown causations mainly includes four aspects: The first aspect is conformed to the principle of self liability; the second aspect is conformed to the corrective justice of the principle of responsibility formation on the tort; the third aspect is conformed to the distributive justice of the principle of responsibility sharing on the tort; The fourth aspect is conformed to the value pursuit of deterrence purposes in the Tort Liability Law. In addition, the steady domestic foundation and the abundant experience in abroad are the other two important reasons of the application of proportional liability.The existing responsibility system of the domestic majority tort mainly formulates the clear rules of responsibility sharing for the three kinds of the tort of multitudinous unknown causations. The three kinds of the tort of multitudinous unknown causations are joint dangerous activity, the behavior of “respectively implementing, enough causing” and the behavior of “respectively implementing, combined causing”. But the rules about responsibility sharing of the joint dangerous activity in the Tort Liability Law can’t solve the problem of responsibility sharing when blameless causations participate in the tort. The reason is that the joint dangerous activity includes the condition of unknown causation. If we unboundedly applied the joint responsibility to the joint dangerous behavior, then it would make the defendant undertake the compensation liability which was not caused by himself. This will lead to the consequence of excessive deterrent to the defendant. At the same time, the article 12 of the Tort Liability Law applies the theory of average responsibility to the “respectively implementing, combined causing”. Because the theory of average responsibility has the thought of “sweeping approach” and “equalitarianism”, and this thought can’t achieve the purpose of different punishments to the different dangerous makers, so it is easy to make the doers who respectively do the tort undertake the compensation liability with too much or too little. This will lead to another kind of unfairness. In addition, the rules about responsibility sharing of the high altitude parabolic behavior also have imperfection which is mainly manifested in two aspects: one is the disadvantageous consequence of “the innocents undertaking the other people’s fault”, the other one is the lack of quantified stipulation in the law which is applied to making the users of the building undertake compensation liability. The above defects of the domestic rules about responsibility sharing further enhance the demand for the application of proportional liability.The application of proportional liability which is applied to the tort of multitudinous unknown causations can fully draw lessons from foreign experience. The theoretical discussion and practical exploration about proportional liability in foreign countries are rich diversity and the correlative content and angle are also flexible. The foreign experience includes the innovative explanation about the basic concept and rule, such as redefining the damage and reforming the decision rule of causation. The foreign experience also includes the definition of applicable scope for the proportional liability, for example, the proportional liability is mainly applied to the massive product tort in America, but applied to the atmospheric pollution tort in Japan. In addition, the foreign experience accepts the evidence of social science which is mainly reflected in the acceptation to the statistical data and statistical probability.In order to remedy the imperfection of the domestic rules about responsibility sharing which belongs to the tort of multitudinous unknown causations and eliminate the confusion of causation and responsibility sharing which is existed in the people’s practice, as well as further developing the scope of application in the proportional liability, we can do efforts from the following four aspects on the basis of drawing lessons from the foreign experience: the first aspect is to combine the mature exploration for the degree of mistakes and causation which is in the traditional theory of tort law, and meanwhile introduce the quantified analysis to determining the proportion with probability theory, legal economical analysis, the theory of market share liability, loss of survival chance and the principle of fairness and justice, eventually forming the basic solution of determining proportion; the second aspect is to confirm the scope of application to the proportional liability; the third aspect is the comprehensive consideration to the limited factors of application in the proportional liability; The fourth aspect is to improve the terms of the legislation in the Tort Liability Law and the evidence system and the proof standard of civil procedure.