The Research On Application Of The Fair Liability

Tort law is an important part of civil law system in our country,the principle of fault liability,the principle of no fault liability is an important system to resolve the civil disputes.but on the position and application of fair liability, there still have a lot of controversy in the theory and practice of the operation, "tort liability law" on the attitude of the problem is still not very clear,and there is no corresponding judicial interpretation can play a key role in dispute,not only to the nature of fair liability,but also The applicable conditions and scope are not clearly defined,even leads to the lack of uniform standards in practical operation,so that the rules of the word formation can not really play its system value.In order to provide a reference for the judicial practice, it is necessary to discuss this problem thoroughly, in order to clarify its orientation, find out the applicable conditions and scope. At the same time, it is more important to combine the actual cases in the real trial, analyze the practical situation and special situation of fair liability in the practice, rely on the theory to guide the practice, from practice to abstract the theory,so as to promote each other,make the theory system of fair liability more completely,to provide a reference for the judicial practice.The full text is divided into four parts:The first part is an overview of fair liability. The author discusses the concept, characteristics and historical evolution of fair liability. It is better to understand the connotation of fair liability through the analyze of fair liability conception,and through the comparison of different scholars, the author believes that the key lies in the definition of fair liability have three elements they are the no fault of both parties、the fair idea、the appropriate share of losses,and through the compare pf fault liability, no fault liability,make the connotation of the concept of fair liability being more clear.from the concept, summarize the characteristics of fair liability.And the analysis from its infancy to the formal establishment have passed three important stages, so as to clarify its origin, grasp the context.The second part is the position of fair liability. The point is whether the fair liability is the doctrine of liability fixation or not, The dispute over the application of fair liability lies in the Position dispute. The author read related books and periodicals, have found that many scholars still believe that the principle of fair liability belongs to the principle of liability. So that have exaggerated the function and scope of application,So the author starts from the controversy of the academic community, analyzes the reasons of the principle of fair liability does not belong to the principle of liability, and draws the conclusion that it belongs to the loss sharing rules.The third part is the applicable conditions and scope of fair liability. First of all, from the theoretical analysis of the applicable conditions,mainly includes the four aspects,they are the fault factor、the other forms of responsibility、the factual connection、the comprehensive economic situation.Combined with found a large number of judicial cases by the author,summed up the common types of fair liability in practice,according to the analysis of objective no fault and no fault one by one,each type is given a specific case, it is targeted to explain the scope of its application, so that the exposition can be more clear.The fourth part is the special issue of the application about fair liability. The author gives four typical cases, analyzes the common mistakes in the application of fair liability among the practical operation,To further clarify the issues that should be paid attention to in the application of fair liability,To make fair liability in judicial practice more operable.Finally, the author thinks that the fair liability is very easy to abuse in practice because of its own nature and characteristics, which should actively introduce social security system to break the situation of fair liability bearing too much social and moral attributes.