Contributory Negligence System In Tort Law

Contributory negligence refers to that the injurer’s liability for compensation can be correspondingly relieved or exempted when the victim commits fault in generation or expansion of damage. Developing from Pom Rules of Roman Law, this system changes the unreasonable responsibility sharing of whole compensation/no compensation, and can seek for fairness between the victim and the injurer. Starting from the analysis of rationality basis of contributory negligence system, the paper mainly discusses components, subject affirmation standards and operation methods of contributory negligence; and tries to further define specific applicable rules of contributory negligence system.The paper discusses contributory negligence system mainly in the following 4 parts: Part 1 summarizes the contributory negligence system and discusses concept and legal basis of contributory negligence. Besides the abstract fairness and justice theory bases generally approved by theories, the author analyzes theoretical opinions including contributory illegality, contributory blame possibility, some causality theories and contributory accountability; tries to discuss legal basis of contributory negligence from a more microscopic perspective; and hopes to provide clearer direction for specific institutional operations in practice. Part 2 discusses components of contributory negligence, which comprise fault committed by the victim, improper behaviors of the victim, causality between the victim’s improper behaviors and generation or expansion of damage, as well as the victim’s ability to commit fault. Starting from a symmetric structure, the author compares similarities and differences between components of contributory negligence and those of liability for tort; highlights analysis of natures and standards of the victim’s fault; and hopes to bring guidance for specific application of contributory negligence and adapt it to realistic demands of juridical practice. Part 3 analyzes subject affirmation standards of contributory negligence, and mainly discusses whether a fault of a third party such as guardian or employee who possesses special relationship with the victim can be deemed as the victim’s fault; whether a fault of direct victim can be deemed as the fault of indirect victim and then can be applicable in contributory negligence system. Commonly seen in juridical practice, these problems are often handled in a too abstract and perfunctory manner during judgment. Hence, loopholes shall be made up in theories while categorization discussion shall be realized in order to provide uniform judgment standards in practice. The author analyzes essential differences in two relationships respectively between guardian and person under guardianship and between employee and employer; and puts forward different solution manners. Part 4 discusses contributory negligence and responsibility sharing. After contributory negligence is set up, how to distribute responsibilities of both parties including an injurer and a victim appears to be particularly important. Such application embodies specific fair value and also requires relatively clear operation standards based on a judge’s discretion. By analyzing three different modes including comparative fault, comparative causative potency and comprehensive consideration, the author puts forward modes which are respectively emphasized under different cases.