Study On Non Responsibility Apology

Apology contains the meaning of admitting mistakes and saying sorry. It has the function of comforting of the victim’s spirit damage, punishing the infringer and ending the lawsuit. "General Rules of Civil Law", which was formulated in 1986, regulates apology as one of ways of civil liability. "Tort Liability Law", which was formulated in 2009, refines it as one of ways of tort liability. As a tort liability, Apology differs from eliminating impact, restoring reputation, stopping infringement and compensation for damage and it has some features, such as personal attributes, voluntary, linguistic and so on. Generally,apology applies to the cases of infringement of the right of name, portrait, honor and reputation. Its compulsory execution mode generally is announcing judgment,the infringing person bearing the expenses.In the comparative perspective, the law of continental law system does not regulate apology as a way of civil liability. Some countries and regions have laws regulating "the appropriate punishment" to restore the reputation, and have judgments about "apologize published" or "apology advertisement". However, the relevant legal theory and the constitutional judgments, ruling that the compulsory apology was unconstitutional, or that the "apology" is only a means to restore the reputation. Countries and regions of the Anglo American law system, not only deny apology as a way of civil liability, but also set "safe harbor" system to forbid apology as evidence of admitting fault or responsibility; They also set " offer to make amends " system to make apology as a factor of damage compensation decision.We can see, in the foreign law, the apology dose not become an independent form of tort liability.In theory, there are debates about whether or not to abolish apology as a way of tort liability, including positive and negative opinions. People who have the supported view, say that apology has the function of soothing the spirit, can promote the improvement of interpersonal relationship, and improve the efficiency of the proceedings, and have the legal effect of social education. People who have the negative view, say that making the apology as a way of civil liability will produce unconstitutional, disrupt the tort liability system, can not effectively protect the interests of the victims and other adverse consequences.This paper is based on the purpose of the legislation of apology and the implementation status of apology, using the empirical analysis and comparative study, finds that apology as a way civil liability has many defects, departing from the legislative intention. Apology’s compulsory execution mode has not considered the characteristics of voluntary. As a way of civil liability, apology causes the boundaries between law and morality; Because of violation of human dignity and the freedom of speech and other constitutional rights, it violates the Constitution.It also leads to civil logic confusion. The fact that apology fails to enforce, easily leads to revenge and false apology, has poor judicial effect.Starting from the present situation of our country’s legislation and judicature, combining with the advanced achievements of foreign law, this paper suggests that our legislation should eliminate the apology as an independent form of tort liability, and replace it with punitive damages.In personal tort, punitive damages can continue to play the role of compensating for the spirit of the victim, punishing infringer, prevention and settling disputes.The legislation of our country should stipulate that in the process of deciding the amount of compensation for spiritual damage of the discretion, apology should be as one of the factors for consideration of mitigating circumstances. Our country should set up the "safe harbor" system, denying the apology as evidence, so as to encourage the parties to actively reach a settlement and improve the efficiency of the proceedings.