The Application Of The Hand Formula In Tort Law

The purpose of the tort law is to rationally distribute the risk between the infringer and the victim,thereby reducing the social costs at the time of the infringement,increasing social efficiency,and the judgment of negligence is of particular importance in the tort law.The Hand formula(B <PL)is the representative of the economic analysis method applied in the field of law,is an important criterion for determining the fault in the tort law,its content is to use the function formula to compare the damage caused by the cost of prevention and the expected cost of social relations,when the cost of prevention is less than the expected cost,the law should respond to the victim's class with the corresponding responsibility.Since 1947,the United States Federal Court of Appeals Court of the Second Circuit,Learned Hand,in the case of the “United States Government v.Carroll Boeing Tug Company” in the case of the formula on the negligence,the Hand formula has been concerned by jurists and economists.In the future development,there are scholars(such as Persia),such as the study of marginal quantity,the assessment of social efficiency,the assumption of rational people,the analysis of“risk-benefit” Satisfied)to deepen its transformation.As a very creative way of thinking,the Hand formula does play a role in the judgment and value judgment of real life,but both the supporters and opponents of the Hand formula argue that the Hand formula is not omnipotent,the economic analysis method used in the formula of Hand is easy to produce “moral hazard”,and it is difficult to “quantify” the moral formula of Hand formula,the contradiction between the subjective effect of economic analysis and “the standard of rational person” in tort law.These problems make the application of the Hand formula in the judicial practice difficult,that is to say it is to judge the size of the risk and the social value of the perpetrator and other factors is not perfect.Although the Hand formula fully indicates the importance of interest measurement in risk prevention,there is no description of the method of measurement of interest.In our tort law,the Hand formula still has its applicable space,and in our judicial practice there are judges have applied to the concept of the Hand formula for referee,but the use of the level of the referee is very limited,often appear to be ill-considered or the use of errors and other issues,for example,“predictability” as a single fault liability standards,dogmatic understanding of “security obligations”,the lack of clear interpretation of abstract language and so on.And fully study the theory of the Hand formula and its practical application,is conducive to correct the above errors,rich judge referee thinking,reasonable application of legal norms,accurate handling of infringement cases.So that our tort law more operational,but also can promote the enrichment of our judicial practice and development.Put the Hand formula into the tort law of our system,use it to judge the case of negligence.Is not to subvert the existing tort law system in China,but to strive to use the Hand formula for China's fault infringement cases to provide new solutions and methods.Through the Hand formula to motivate the actor to make the most rational behavior,actively prevent the occurrence of violations,and automatically reduce the risk,as the so-called “optimal accident avoidance”,so that the whole society to improve efficiency.In short,the Hand formula pioneering the analysis of the cumbersome legal logic with a simple mathematical formula,which contains the method of analysis of law and economics,and strive to from the perspective of prior prevention of tort and responsibility to identify the problem.