The Scope For The Application Of Comparative Negligence Regarding The Faults Of Third Party

In judicial practice, the rule of comparative negligence has a long history both in civil law system and in common law countries which acts as a measure to release liabilities of infringers when faults of victims also contribute to damage. In the legislation of People’s Republic of China, this rule has been clearly elaborated in the law of Tort and General Principles of the Civil Law. There are plentiful researches about the rule of comparative negligence both in the practical and academic field as well. This rule will surely applies when damage due to the faults of both parties. While the situation that a third party who has certain relationship with victim, shall the rule of comparative negligence apply in the circumstance that the third party’s fault can be regarded as the victim’s? Though there were a few academic discussions, it’s not sufficient enough. Five typical cases selected form the main issues to be analyzed in this article(four aspects of problems to be resolved): whether contributory negligence shall be applicable when guardians of the minors and infringers are responsible for the damage of the minors; whether debtors as the victims, shall take the responsibility of contributory negligence for damage caused by the faults of performance assistants and infringers;Whether one of the spouses who is injured, should take the responsibility of contributory negligence for the damage which arisen by the faults of the other’s and infringers; whether the indirect victims’ damages shall be decreased because of the faults of victims to the damage. In this article the author uses foreign theories and practical cases for reference to conclude a possible and reasonable solution to our country’s legislation. In order to complete abovementioned approach, firstly the main elements of tort are analyzed and compared to the elements of contributory negligence, which lead to the result that this two systems have the similarities both in content and structure. As a result, we shall rebuild the element of contributory negligence to find out the victims’ original responsibilities basis in the rule referring to the ways determinate infringement. According to aforesaid approach, the liability for contributory negligence shall include followings: victim’s fault; damage caused by victims of such behavior; the violation of Obliegenheits. On this basis, the author draws the conclusion that contributory negligence shall not be applicable when the fault of guardians constitute a breach of the tutelage duty; debtors as the victims, shall bear the responsibility of contributory negligence for damage caused by the faults of performance assistants and infringers except the situation that statutory agents make non-juristic acts; one of the spouses shall bear the responsibility of contributory negligence for damage when occurred by the faults of the others and infringers in daily household affairs while the rule shall not apply in the rest of situations; when the right to life suffers the damage, the property damages of indirect victims shall be decreased because of the faults of direct injured person while not applicable to mental injury compensation.