The Applicaton Of The Contributory Negligence In Tort Law

Contributory negligence is based on the principles of fairness and justices, andoriginated from the principle of self-responsibility, becoming the defense in tort law.The Chinese “Tort Liability Act” Article26is the general provision.This article will explore the application of contributory negligence in our countrywith discussing varies theories, which includes the following aspects: whetherapplicable to various types of tort liability; whether the negligence of the third partyidentified as victim’s; whether the principle of contributory negligence is applicableby analogy. Above all, the core concept is “fault” of the victim. Through the analysisof the cases, we will grasp comprehensively the application of contributorynegligence in China.This paper is divided into three parts:Part I: This part is the foundation of the paper.To compare with the differenttheories about the contributory negligence, I agree with the majority, it is the faultoffset rather than the illegitimacy offset. Firstly, I will introduce the theory ofillegitimacy offset. However the mainstream view is fault offset, in which capacity fortort liability is considered. There is no express provision in our country about thecapacity for tort liability, but the scholars hold that we should apply in thecontributory negligence, especially when minors are victims.Part II: This part analysis comprehensively the fault of the victim. Firstly,contributory negligence is to compare the extent of fault about both parties in tort law, so we need make clear the definition of the “fault of the victim”. Through study manycase, it seems that the courts find the fault of the victim at will, it is unfair to thevictim. At this time, we turn to the theory of contributory negligence. We need toconsider the power for the total integrated reasons and fault extent, and causality.Part III: This part analysis the applications of contributory negligence: Firstly, thegeneral view is that it can be applied in the no-fault liability, whereas in our country, itshould combine with specific regulations. Secondly, whether is it applicable to thenegligence of third party, who has a special relationship with the victim. While theChinese scholars say that the guardian and the employer can be the special third party.Finally, when the special physical of the victim leads to the damage, it can apply thecontributory negligence by analogy. In the road traffic injury compensation cases andmedical malpractice cases, when the special physical of the victim is the cause ofdamage, it allows to reducing the compensation of the obligator. But generally, itusually be that the special physical is so serious that we can’t ignore its function, ifthe special physical of the victim is within the range of obligator’s foreseeable, itcannot be the relief of responsibility.