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Identification Of General Tort Ultimate Facts

Posted on:2015-11-27Degree:MasterType:Thesis
Country:ChinaCandidate:X Y LuoFull Text:PDF
GTID:2296330467966229Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In handling cases of general tort of China’s current judicial practice, The court adopts therequirements of the traditional civil law theory, in which the tort can be divided into:negligence, illegality,causation and facts of damage。Substantive law scholars have done awealth of research analysis on the four elements, which played a guiding role in handlingcases of tort in practice. Analysis of these scholars do, however, have been standing on thetheoretical level of the substantive law.Which is the ultimate fact of the elements? Whichparty is claimed to bear the burden of proof? the above problems are rarelymentioned.Although there are some differences between theory and practice,in dealing withsome simple cases such as "physical damage to body or property" didn’t appear muchinconvenience. But we need to pay attention to that with the development of social economy,all kinds of new cases of tort also emerge in endlessly, which no longer limited to the case forthe physical damage body or property, which makes the traditional theory can’t play a rolewhen dealing with these types of cases. On the one hand, the parties confused about how toobtain the court’s support; the court trial, on the other hand, can’t be solved on time, evencould not resolve the dispute. To solve above problems, the author try to use elements facttheory and the research of the civil law, analysis of the article6of the tort act, to clear the tortfour ultimate facts, so as to guide type of infringement case.This article, except for the parts of introduction and conclusion, consists of5parts, andcounts of30,000words.The introduction section is from the research of ultimate fact in our country, to point outthe meaning of the ultimate fact in the field of tort law, and sketch the basic ideas of thepaper writingBy analyzing the basic concepts, including the etymology and the definition of ultimatefact and how to guide the litigation, the basis of the theory closely related to the ultimate facttheory——the burden of proof theory and the responsibility theory, which are premise of theresearching on ultimate fact theory, clarifying the extension of related concepts, grasping thebasic theory of context, this part lays the foundation for the later.In the second part to the fifth part the author analyzes four elements of the general tortrespectively, which involves the analyzing of the definition, the nature and the structure of theconcept, so as to find out the ultimate fact of the elements, finally clear the distribution of burden of proof. Except for the general analysis of the elements, these parts also analyzes thefour elements in the own characteristics, including objective fault, illegality and fault, thetheory of causal relationship, the essence of the damage, etc. Through the analysis of relativeperfect, on the one hand, we can have a comprehensive understanding of four elements ofgeneral tort, we can find out the right ultimate fact of the element, which laid a solidfoundation of correct allocation of the burden of proof. Besides the author writes about how toclaim the proof fact done to a certain extent based on the consideration of judicial level.In the conclusion part of this article, the author makes the summary of the second partto the fifth part, get the final conclusion, at the same time points out the limitation anddeficiencies in this paper. Though the opinion in this paper is usual I hope this article couldprovide a possible solution for solving the infringement quickly and properly.
Keywords/Search Tags:Ultimate Facts, General Tort, Negligence, Illegality, Causation, Factsof Damage
PDF Full Text Request
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