Discussion On Orientation And Application Of The Fair Liability

Fair liability is the product of social development and the embodiment of civil law principle of fairness in torts law. The purpose of the fair liability, is to the victim when he or she cannot pass through the fault liability or no-fault liability recovery behavior of human cases, the victim and the offender share the loss according to actual situation. The academic discussions on the fair responsibility mainly around the "general rules of the civil law" 132 nd expansion before the "Tort liability law" promulgated, the application of fair liability in judicial practice also based on this article. But the "general principles of civil law" article 132 nd itself has a large controversy, most scholars believe that its contents is fuzzy, interoperability is not strong. With the "Tort Law" introduced, on the fair liability debate into how the fair liability for positioning and how to apply the fair liability. In this paper, starting from the difference between the fair liability and the doctrine of liability fixation, that fair liability should be defined as a loss share special rules. At the same time, combined with a typical case, the general conditions and the specific scope of fair liability applicable research.This paper is divided into three parts. The first part is a summary of the fair liability, respectively from the three aspects of the concept, the characteristics and the legislation situation of fair liability. On the concept, mainly discusses the difference between the fair and equitable, and also discusses Chinese scholars on the definition of fair liability; in characteristic, mainly discusses the five characteristics of fair liability; in the legislative situation, mainly inspects the Switzerland, Germany, Italy, Ethiopia, Russia and other countries about the fair liability legislation and China several times in the codification of civil law in the process of drafting of fair liability. The second part is about the fair liability positioning, respectively from the difference between the fair liability and the doctrine of liability fixation, the value of fair liability and fair liability is a kind of special rules. On the one hand, the fair liability and the doctrine of liability fixation are essentially different, the fair liability can not included in the system category of the doctrine of liability fixation; on the other hand, the fair liability has its unique value, it should be the orientated as a loss sharing rules in the Tort Law. The third part is about the application of fair liability, respectively discusses the fair liability applicable general conditions, the applicable scope of specific and "actual situation" and so on. First of all, the general conditions of fair liability application including: the serious damage of the fact, behavior and damage behavior of the fact of a causal connection between man and the victim and the behavior subjective no fault. Secondly, in tort law of China stipulates the concrete scope of fair liability for tort, for the good of the infringer escape or unable to compensate the situation, natural causes of emergency actions and behavior ability completely unconscious or out of control to loss situation, building throwing or falling objects to a loss of the situation, etc.. Finally, when the judge apply the fair liability, the "actual situation" should include the severity of the damage and the economic situation of the parties.