On The Impact Of Operation Risk Of Vehicle On The Tort Liability In Road Traffic Accident, And Review Of Article 76 Of "Road Traffic Safety Law"

With the increasing of the number of road traffic accidents, the studies of tort liability on road traffic accident are particularly important. This paper focuses on the impact of operation risk of vehicles to the tort liability in road traffic accidents. China’s law about the tort liability in road traffic accident uses “the vehicles on the road” instead of the concept of “operation of vehicle”, but the operation of vehicles is a special constituent element of tort liability on road traffic accidents. It is necessary to introduce it into the tort law of China. Operation of automotive vehicle triggers special operation risk, which largely affects the principle of attribution and liability- apportion between the victim and the infringer in road traffic accident. The purpose of this paper is to make the theoretical system of tort liability in road traffic accident clear through studying on operation risk and operation of vehicle.The full text is divided into the following three parts:The first part analyzes the operation of vehicles and operation risks, including the necessity to introduce the concept of operation of vehicle into the tort law of china, the relationship between the operation of vehicles and operation risks, the features about operation risks, the categorization of operation of vehicles, abstract criteria for the operation of vehicles. By comparison studies and empirical research, it can be concluded that on the premise of introduction the concept of operation to Chinese law, it’s much more reasonable to adopt the concept of operation in traffical technology. Meanwhile, on the basis of categorization of operation of vehicles, preliminary judging criteria can be summarized to the two following aspects: firstly, the concrete judgement from the category of whether the motor vehicles is running, secondly, the judgement from three stages such as beginning of the operation, the lasting of the operation, the ending of the operation.The second part mainly discusses on the impact of operation risks to tort liability in road traffic accident and the provision of the Article 76 of China’s "Road Traffic Safety Law", as well as on making explanation and reconstruction of the Article 76 through sorting of domestic doctrine and court decisions and combination with relevant literature in Swiss Law. We should use strict liability for all tort law cases on road traffic accident. There is no need to distinguish cases between motor vehicles or between motor vehicle and pedestrian or non-motor vehicles, and to use different principles of attribution according to the differences mentioned above. At the same time, we should expand the scope of protection of victims.The third part emphasizes on the influence of operation risks to the liabilityapportion of tort liability in road traffic accidents. This part focuses on the liabilityapportion between the victim and the infringer. The liability-apportion between the victim and infringer is mainly through the rules of contributory negligence. Therefore, the focus of this section explores the application of the rules of contributory negligence. The rules of contributory negligence can be applied in the cases of strict liability. Victim should be held liable for operation risks because contributory negligence, even the victim causes the operation risks without any fault. In this case, more specifically may be referred to “contributory responsibility” or “contributory risk”. The main consideration for liability- apportion between the victim and infringer is the ratio of operational risks and fault. In our judicial practice, there is no specific calculation for liability- apportion between the victim and infringer. This paper briefly describes two methods in Swiss law regarding liability-apportion calculations: sectoral distribution method and deduction method.