Study On Tort Liability Capacity

In the countries of continental law system in the traditional civil law, liability system is mainly applicable to tort law, is the foundation of legal responsibility. At the present stage of our country, the tort liability ability problem seems to be gradually out of our sight, for our tort law, the study of this problem is of theoretical and practical significance. First of all, the tort liability in the civil law position ability did not understand clearly, lead to a loss of independence, completely attached to the civil behavior ability or capacity for civil rights. Secondly, in the "tort liability law" in the drafting process, our country should method whether the provisions of tort liability of civil capacity of the main body of the heated discussion, the final legislature denied the necessity of legislation of tort liability system of capacity, but the necessity of Professor Hu Xuemei, Zheng Yongkuan and other identification capacity for tort liability and the use value, its theory also set people thinking, foreign countries and Taiwan recognized the rationality of tort liability ability, relatively speaking in this respect than China to perfect, to fit for the situation of our country part, should be absorbed. The main purpose of this paper is intended to point out the lack of capacity for tort liability in China’s tort law, necessity of the existence of prominent tort liability capacity. Again, in the judicial practice, we have a judge in order to facilitate the closed cases, deliberately ignoring capacity for tort liability, take attention to judicial relief, the only standard of property liability for tort capability, these factors are likely to cause dilution of tort liability capacity. Some problems of theoretical confusion and in judicial practice have prompted us to rethink about the tort liability ability.In this paper, from the most basic problem and "tort liability act" the legislative debate starting, in order to carry out a comprehensive research on tort liability system. This paper intends to the existence necessity and rationality of tort liability capacity from four parts. The first part discusses the overview of the tort liability capacity, four aspects including the capacity for tort liability concept, nature, basic theory and value, the nature of tort liability ability to always give us a feeling of "fuzzy", we do not have a clear understanding of it, I’m going to start from the relationship between behavior and civil capacity, civil rights capacity and capacity for civil liability of the three, analyze the independence of tort liability capacity properties. The basic theory is the analysis of the two civil natural person and legal person subject from the angle of theory of law. Value orientation of tort liability is the ability to discuss with the protection of minors, the complete system and coordination system and the maintenance of the three aspects of the autonomy of private law. The second part discusses the judgment standard of tort liability capacity, with the method of comparative law analysis of France, Germany, Japan and Italy civil law tort liability on the ability to judge the merits of the standard. Study on tort liability legislation in our country and its present situation is discussed in the third part, first carries on the evaluation to our current law secondly, focuses on the analysis of China’s civil code draft proposed draft of tort law, China’s current legislation and most experts deny the existence necessity of tort liability capacity, a small number of experts confirmed its rationality, the author through the analysis of the supporters and opponents of two ideas, to find the key point of dispute, there are two problems, first, "" second objective "the error problem, judicial practical problems, to the two argument for the analytical reading, comes to its own point of view," objective "negligence and the judicial reality cannot be why desalination capacity for tort liability, and then draw the necessity of the existence of the tort liability capacity. Put forward to perfect tort liability capability of the proposed fourth part, mainly have three points to determine the independent standard, responsibility of tort liability and the concrete construction, the ability of the guardian liability and liability of guardian of the strict distinction between.