A Review Of The Liability Constitution In The Tort By Third People Involved In The Security Obligations An Interpretation Of The 2th Paragraph Of Article 37 Of Tort Liability Of The People’s Republic Of China

Paragraph 2 of Article 37 of Tort Liability Law did not absorb theory achievement in academic circles in recent years, but it basically followed Paragraph 2 of Article 6 of Judicial Interpretations on Compensation for Person Damage. From the perspective of system, Paragraph 2 of Article 37 of Tort Liability Law have cross-correlations with majority of infringement. From the inside of the clause, there are questions about whether supplementary liability and right of recourse is reasonable. To sort out the judicial practice, we can find out whether it is the commitment of external responsibility or the sharing of internal responsibility. There are different judgments in the third people involved in the case of security obligations. To face with the confusion with interpretation of provisions and chaos in judicial practice, This require that we must use the dogmatic to analysis the third person involved in the safety and security obligations.From the perspective of concept and system, we find that whether or not to consider the impact of the majority of infringement on the "Tort Liability Law" second thirty-seventh, will lead to two kinds of interpretation. The first is to expand the application of Paragraph 2 of Article 37 of Tort Liability Law, which is occupying the mainstream view. The second is to use the majority of infringement to limit the Paragraph 2 of Article 37 of Tort Liability Law. However, after careful analysis, the two kinds of interpretation theory has its inherent defects, whether the value or the logic level it needs to be improved. But this kind of explanation has provided the reasonable direction and the material for us to construct the explanation theory of the third party intervention type safety guarantee obligation.Simple from the outside, that is the victim settlement perspective, in combination with the special situation in safety and security obligations, adding liability and joint liability and according to the responsibility, they have something similar,when they share of all,it is closer to the joint and several liability, when the complement share for just a particular, it is closer to the press copies of responsibility, just spent on victim compensation program cost exists a certain gap.Legitimacy foundation of external joint and several liability for the subjective meaning contact and may be causal relationship and external according to the responsibility of the legitimacy foundation for policy considerations of the offender for damage other perpetrators of the lack of predictability, legitimacy and the causal relationship between the facts clearly, external supplementary liability is to make didn’t need to assume the liability of supplementary liability to bear the responsibility and the corresponding supplementary liability is give it higher than the general obligations of the main responsibility.On the basis of comparative law, we find that the supplementary liability is not a common practice in the comparative law, so we should distinguish the causal relationship in different ways.There are two theoretical bases of Internal responsibility sharing,one is the quantification of the respective responsibilities, which is based on the reason and the fault,one is to distinguish the type of layered matter theory thought leading compasses.First on the sharing of internal responsibility,if the perpetrators are at different levels,first level reason to assume the responsibility should be the main, in most circumstances shall assume the final responsibility. The second level is secondary, assume the foreign intermediary liability, to enjoy the first level causes harm human recourse.If each of the perpetrators in the same level, it should be based on the reasons and the fault to determine the final responsibility to determine the distribution. on the basis of comparative law,third people involved in the security obligation of tort, according to different external responsibility, in addition to the responsibility, we need to force the internal fault by sharing principle.If they exceed their share, they can claim compensation from the other offenders.In the supplementary liability when considering the policy factors,it can confirm the recovery right.On the basis of clarifying the legitimacy of the external responsibility and internal responsibility, we found that the Tort Liability Law in China has made a mistake in the legislative motive and the meaning of the text, so we need to re locate the security obligations.On the basis of this, we think that we can construct the two explanatory path.The first path is limited to explain the paragraph 2 of article 37 of Tort Liability Law,the second path is to reinterpret supplementary responsibility.Specifically, each of the two paths has its advantages,path one can reasonably clear the relationship,but it is difficult to be accepted by the judges.Path two, although it has not been deconstruction from the meaning of the text,it adheres to separated the Paragraph 2 of Article 37 of Tort Liability Law from the majority of infringement.After explanation, the supplementary liability with the help of the causality theory is closer to the responsibility and joint and several liability,but in the process is more cumbersome, it also eliminates the role of the original added responsibility.