The Research Of Loss Allocation’s Attribute And Types Of Liability

This paper is a study of loss allocation’s attribute and types of liability in the tort law.Loss allocation refer to when both sides with no fault for causing the damage,then both parties share the loss according to the actual situation.Loss allocation have certain abstraction,fuzziness,and may be abused in the judicial referee,but under the current social background,it can balance the interests and realize the legal relief effectively.It is in line with our national conditions and traditional ideas.It is still a worthy of attention to the legal system.The study of loss allocation can not only regulate the interpretation and application of loss allocation,but also ensure the fairness and justice of the judicatory judgments.It also can make the disputes belong to a legal interpretation and application system.In the first chapter,firstly,the paper defines the meaning of loss allocation in tort law and briefly introduces the legislation of loss allocation in comparative law.Besides,the article elaborates the evolution of loss allocation in China’s legislation.Secondly,through the empirical research method,the author deducts the declarative reference and the wrong application of the loss rule in judicial referee.Through the research of these problems,we will lay the foundation for further elaborating the attribute and responsibility of loss allocation.The second chapter focuses on the analysis of the legal attributes of loss allocation,and clarifies that it belongs to fair liability.First of all,based on the summarization of the academic controversy,the paper analyzes the thoughts and controversies of the study on the attribute of loss allocation.There are four kinds of viewpoints on the attribute of loss allocation,which is considered as one of the principle of imputation,that it belongs to the legal compensation,and it is only the principle of sharing the loss and not the imputation principle.The scope of responsibility.Secondly,the paper will determine its attribute with fair liability by using interpretative theory.Finally,from the point of view that loss allocation belongs to the legal compensation obligation or the fair liability,the priority of the fair liability interpretation is demonstrated through the comparison of the two kinds of qualitative comparison.Chapter 3 elaborates on the establishment of fair liability in specific types of loss allocation.This paper introduces the typological rules of loss allocation in tort law.This paper analyzes the priority application of fair liability in the specific system of loss allocation,constructs the basic responsibility type structure of loss allocation,and further clarifies the status of fair liability in China’s tort law.The basic framework for loss allocation is based on general provisions supplemented by typed provisions.From the provisions of the Tort Liability Act,Article 24 provides that the general provisions of the rules for loss allocation,Article 23,Article 31 and Article 33 and Article 87 belong to the type of the provisions.Overall,China’s "Tort Liability Law" to loss allocation is relatively simple,should be gradually improved.The fourth chapter mainly discusses the system perfecting measures of loss allocation.Based on the existing legal provisions and the legislative background of the compilation of the Civil Code,this paper makes an improvement and perfection on the rules of loss allocation in the tort law from three aspects those expands the scope of application of loss allocation,introduces dynamic system to make a comprehensive identification and loss allocation’s clarification and standardization of the Civil Code.