Study On Infringement Supplementary Liability

In the traditional theory of civil liability, joint liability is commonly divided into proportionate liability and joint and several liability. With the development of the society, it is believed that the above classification has been unable to meet the needs of social development situation in the civil law practice and theoretical study. So in addition to these common liabilities, supplementary liability is added. Under supplementary liability, the damage is caused by more than two tortfeasors.The person whose act caused the damage directly is liable primarily, and the person whose liability is supplementary should assume the liability according to the degree of his fault and the causal relationship caused by him. Supplementary liability is a major innovation in the field of tort law theory and legislation as well as an effective solution to the problems of traditional theory and law. The special legal connotation and applicable rules of the supplementary liability make itself of great legal value and play an irreplaceable role to resolove the conflicts between stakeholders. Supplementary liability makes up for the functional defects of other civil liabilities and also balances the interests of the parties of each group. Therefore it has great theoretical value and practical significance. However, the concept, scope and the nature of supplementary liability have been disputed for a long time, and the current legislation lags far behind the practice. These all result in the confusion in judicial application. To improve the supplementary liability system in order to prevent damage and fill up the damage is the main purpose of this paper.This paper consists of3parts, introduction,text and conclusion. The text is divided into5chapters.The first chapter discusses the origin and nature of tort supplementary liability. The investigation is conducted from the perspectives of comparative law and legislation and judicature in our country. After evaluating the representive perspectives of the academic, a conclusion can be drawed on the concept of supplementary:in several liabilities of the same content based on different causes among more than two tortfeasors, the tortfeasor who’s act cause the damage directly is liable primarily, when he is missing or he’s capital is not sufficient to assume the full responsibility, the person who is secondly liable shall assume the liability corresponding with the degree of his fault and the causal relationship caused by him. After assuming the liability, he could pursue for a contribution from the person who holds the primary liability. While discussing the nature of of tort supplementary liability, the author has also introduced the concepts such as unreal joint and several liability.The second chapter gives analysis of the foundation and value of tort supplementart liability. When analyzing the foundation, the author proves the legitimacy of supplementary liability by comparing two elements, with the reason and the fault included. The value of the liability mentioned above is reflected through enriching forms of tort liability involving various parties and balancing the interests among the subjects.The third chapter analyses the constitutive requirements of tort supplementary liability. Given the constitutive requirements of such liability in question should be different from general tort constitution, the author proposes that the tort supplementary liability constitution should consist of five elements, namely a tort of a third person directly causes the damage, the actor violates the obligation, the person with obligations is at fault, there is a causal relationship between omission and damages and the direct liable person is not sure or can not be totally liable for damages.The fourth part elaborates on categorization of tort supplementary liability. In order to categorize the tort liability the author firstly analyzes the range of the supplementary liability in the Tort Liability Law. The author considers that the guardian’s liability is not tort supplementary liability under certain circumstances. The supplementary liability in the Tort Liability Law includes the supplementary liability of obligators of security, schools, vehicle owners, and labor dispatching agencies. Secondly, based on different obligations, tort supplementary liability is classified into two categories as follows, the supplementary liability held for not preventing a third person from doing harm to others and not protecting others from injury by a third person.The fifth chapter discusses the assumption of tort supplementary liability. Problems as how to assume the liability and how to pursue the contribution have been discussed. In the judicial procedure, whether the person holds to the direct liability is missing or nor decides how the person holds the supplementary liability assume his liability.