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Analysis Of The Contributory Negligence In Tort Liability Law

Posted on:2016-02-08Degree:MasterType:Thesis
Country:ChinaCandidate:G H WangFull Text:PDF
GTID:2296330479488275Subject:Law
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With the rapid development of our country’s economy,the process of the society with rule of law is constantly advancing in China. In the transversion of achieving the goal of our society with rule of law,many kinds of legal systems dealing with new situations and cases are arising at the same time. In this background, our country has enacted Tort Liability Law in 2009,this law has appeared many new rules which dealing with every kind of infringement cases in the area of civil law, thereinto, the Contributory Negligence Rule is particularly brisk. As a rule of adjusting responsibility between the victims and infringers, the Contributory Negligence Rule has a fatal significance in maintaining justice and reinforcing the deficiency of Fault Liability and Liability without Fault areas in Tort Liability Law. The main problem it is to solved is how to allot the responsibility between victims and infringers when the victims have fault to the occurrence or expansion of the damage result. Though the Contributory Negligence Rule has appeared in Tort Liability Law, the stipulates and studies of this law system are quite brief and the legal system about it is not improved, in addition, the exact application of the rule hasn’t formed a fleshed and unified standard, and the components of Contributory Negligence Rule also hasn’t formed an unified vision. Meanwhile, in practice, the function of the important rule has not be fully elaborated,this leads to a one-size-fits-all in the practical operation of the courts. Therefore, the Contributory Negligence Rule can not serve its function fairly well in adjusting the responsibility in our country.This article falls into three parts: the introduction, the text and the conclusion, thereinto, the text is comprised by four chapters.The first chapter mainly analysis the connotation of Contributory Negligence Rule. First, through a little case to raise the the concept of Contributory Negligence Rule, by researching the historical evolution and its pursue principle spirits can we have a clear understanding of the concept of the rule, then I start to analysis the legal characteristics of the rule including the victims have fault to the occurrence or expansion of the damage result, the rule can be used to lighten or exempt the infringer responsibility and the judges can actively apply the Contributory Negligence Rule according his or her authority. These legal characteristics can help us have a deeper understanding of the rule. Meanwhile, as it is very hard to definite the rule in Tort Liability Law, the author compare the rule with several other relevant legal concepts so as to make us have a convenient understanding of the rule.The second chapter is mainly about the analysis of the components of Contributory Negligence Rule. In victim fault, the focus is on the easily appeared debatable areas of victim intention and negligence, pointing out the difference between victim intention and victim consent, and also has an identification of the nature,type and judgment of victim negligence. The nature of victim negligence refers to the reasonable notice,it should be identified by the objective standard. With regard to the victim contributory negligence ability, based on the analysis of responsibility view and objective view, I deem that the victim should possess the contributory negligence ability, however, this ability is not equal to responsibility ability, it’s a kind of identify ability.The third chapter emphasis on the analysis of the application of Contributory Negligence Rule in Tort Liability Law. First ascertain the apply criteria of Contributory Negligence Rule, including fault liability area and liability without fault area. The key point refers to the area of liability without fault. From the angle of our country’s legislative trends and equitable principle, the author affirms that Contributory Negligence Rule can be applied in the area of liability without fault. However, based on the peculiar nature of liability without fault, the application needs close confinements. In succession, the analysis focuses on the operational methods of Contributory Negligence Rule, by studying the causative potency comparative method, fault comparative method and synthesizing type method, the author tends to the fault comparative method. Moreover, the author puts flesh on the standard of fault comparative method by making a sheet which can provide necessary references to the judicial practice.The fourth chapter raises several improvement suggestions to the applications of Contributory Negligence Rule in our country. First, according to the nature of Contributory Negligence Rule, all the responsibility bearing patterns based on compensation damage can contain Contributory Negligence Rule, therefore, the rule should be applied in the Contract Law area in the Legislative System. Second, aiming to the confusion of legislative provisions, especially the operational methods of Contributory Negligence Rule, improvements are imperative. Afterwards, facing more and more commercial tort cases in our country, the author considers that commercial subjects ought to be bring into the adjustment area of Contributory Negligence Rule. May these personal opinions can help the development of Contributory Negligence Rule in our country.
Keywords/Search Tags:Tort Liability, Contributory Negligence Rule, Responsibility Allocation, Victim Fault
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