A Study Of Supplementary Liability In Tort Law

Due to the third person behavior lead to the damage occurred and damages occurred in the control areas of someone,the one who did not perform properly the security obligation needs to take the supplementary liability. Supplementary infringement liability is a new type of infringement liability. The purpose of this article is to explore the special value of supplement infringement liability and make clear its application.In the first chapter,the author first expounds the creation and characteristics of supplementary infringement liability, sums up its controversy in theory and the judicial practice,and put forward some questions according to these arguments in theory and judicial practice:1、The third person’s behavior and safety guarantee obligor’s omission as a combination of causes damage to others,why not apply the rules of proportionate liability? 2、Whether they have the right of recourse against the third person,after the obligors take the supplementary infringement liability?3、The reason why the obligors should take the supplementary infringement liability is that the third person is the direct cause of the damage, the obligation is the indirect cause of damage,is that reasonable?4、Can the joint liability and the unreal joint responsibility be applied to resolve this kind of dispute?To answer those questions,the author did a research on comparative law,and analyzed the rules of supplementary liability in Switzerland tort law,communication security obligations in Germany law,and the duty of care in common law system, found no applicable supplementary liability of countries and regions.The obligors should take the joint liability in most of the countries.But the Prevention of intentional infringement in America give us an idea: the kind of liability that the obligors should take depends on the third person’s subjective.The third chapter is the main chapters in this paper. How to judge whether a causal relationship,whether the obligors omit its duty,what impact of the third person’s subjective to their liability will be are the important problems of the supplementary infringement liability.1、the author argues that causation can be divided into causality in fact and legal causation,we should judge whether there is a causal relationship between the obligors and damages from those two aspects.When the third person is intent,according to professor Bar Christian Von, the content of the obligations should be considered,do not only use the “but-for”test. The author criticized the reason why the obligors should take the supplementary infringement liability is that the third person is the direct cause of the damage, proposed that giving priority to with fault,the integrated use of the causal force theory and the degree of fault is a correct way.2、The sources of the obligation are three aspects:the law、the kind-hearted Father Criterion,strict criterion to protect some special person such as juveniles. The obligors need to take the more strict responsibility of the special groups who can be anticipate to enter the control region 3 The obligors have the right to recourse against the third person when the third person commit a infringement intently,the obligor are negligence to protect the victim.In this situation, the smaller part between the rest of the liability to pay compensation and corresponding share the liability to pay compensation is the corresponding supplementary liability that obligors should take.4. when the third person negligence commit a infringement,the obligor are negligence to protect the victim, generally difficult to compare the third person and obligatory causation, the theory of direct and indirect reasons have logical loopholes,as a result, the shared liability should be applied.The final part is the conclusion.When the third person commit a intent infringement,the obligor are negligence to protect the victim,the third person should take its own responsibility,and the obligors have the right to recourse against the third person. When the third person negligence commit a infringement,the obligor are negligence to protect the victim,after analyzing the degree of the causation beween the third person and the obligors, they may be provide the equally important reasons to the damages,so the article 12 in《Tort Law》can be applied,and obligors don’t have the right to recourse against the third person.