Violation Of Regulatory Norms And Fault Judgement

On the occasion of the increasing influence of a growing number of regulatory norms in the risk society on the tort law, the relationship between illegality and fault in the tort law has increasingly become an important theoretical and practical problem. The Tort Liability Law of the People's Republic of China fails to explicitly define the relationship between illegality and fault judgement, and the theoretical circle also lacks a profound and thorough understanding of this issue, which results in a great difference in respect of dealing with this issue in judicial practice. Given this, in the guidance of the issues in judicial adjudication of our country, in the focus of the interpretation and application of The Tort Liability Law of the People's Republic of China, and on the basis of referring to the experience of foreign regulation, this paper makes an attempt to establish a rule of fault judgement in violation of regulatory norms that is suitable to China's practical situation.This paper mainly consists of five parts:The first part systematically sorts out as well as makes the summarized analysis of the cases on fault judgement in violation of regulatory norms in our country's judicial adjudication in order to discover the problems existing in our country's judicial adjudication and arouse the problem consciousness in the following study. With the analysis, it is found that there is no uniform rule of adjudication on fault judgement in violation of regulatory norms in judicial practice. Additionally, affected by the theory of priority of public law for a long time, the judge, with little considering other factors, usually directly presumes the actor to be in fault when he or she breaches regulatory norms. The judge in our country is lack of a clear knowledge of the connection and coordination between public law and private law and seems to go in a wrong direction, which needs to be paid more attention to.The second part, from the perspective of comparative law, introduces the experiences of fault judgement in violation of regulatory norms in Germany, Japan, Britain, the United States and China Taiwan. On this basis, this paper would like to set up a common empirical mode of comparative law where the judge should distinguish the different classifications of regulatory norms. If an actor breaches the protective norms, the infringed shall be eased the burden of proof on fault; if an actor breaches the non-protective norms,the infringed shall not be, and the judge only can take this factor into consideration when judging fault.The third part mainly justifies the mode of distinguishing judgement in comparative law and explores a specific rule of this mode to be established in our country's tort law with a method of functional comparison. This paper argues that the protective norms designed to protect others and set up the specific duties of conduct, have a close connection with the duty of care being the standard of fault judgement, so an actor violating of the protective norms can be presumed to be in fault; the non-protective norms being without this feature, violation of them only can be regarded as a factor to consider in fault judgement. Violation of regulatory norms should be taken consideration into fault judgemnt, and there exist two optional paths in interpretative theory: first, violation of regulatory norms shall be provided in Section 6(1) of the Tort Liability Law of the People's Republic of China as a reference of fault judgement so that the judge can practically apply it and decide its effect on the tort law; second, fault can be judged in violation of regulatory norms if the judge applies by analogy Section 58(1) item 1 of the Tort Liability Law of the People's Republic of China which provides medical institutions violating of statutes, administrative rules, regulations, medical norms shall be presumed to be in fault.The fourth part mainly discusses the identification of the protective norms. First of all, it is supposed to define the scope of the protective norms from the formal standard and essential standard and identify the common regulatory norms in judicial practice. It is deemed that statutes, administrative rules, regulations, technical norms and administrative provisions which are binding on private persons are the protective norms, while the provisions of Constitutional basic rights, administrative provisions which are not binding on private persons, contracts and service specifications are not. Then it is supposed to find out the purpose of the protective norms to protect others, in which case the judge has to consider and balance the interests of both parties but in the meantime his discretion should be limited.The fifth part mainly discusses how to judge fault in violation of regulatory norms. Some requirements must be met to ease the burden of proof of the infringed in actor's violation of protective norms: it is the protective norms that are violated; what is fringed should fall within the scope of persons and properties to be protected; the actor has no grounds for exemption. Moreover, whether to violate regulatory norms is appropriately treated as a legal issue to be heard by the judge. At last, from the perspective of the mode of distinguishing judgement, this paper comprehensively reviews the cases in judicial practice of our country.