The Research Of Special Physical Damage Compensation

Special physical damage cases,Anglo-American law system is also called "shell head" cases,this type case as the victim is a special body,cause the damage is beyond the scope of the general damage which reflects its particularity.Comparison method on the practice of relatively consistent,that is,the infringer shall bear full liability for the damage of the victim and special physical fitness as a defense in the victim’s own existence,and thus reduce the liability for compensation,and in the judicial practice in our country,with the trial of cases of infringement of such ideas are not unified,as a result of such cases there is no corresponding legal norms,in judicial practice,there is no clear law as the guidance,the same cases in different court decisions are consistent,and even the same court verdict is not the same.Special constitution tort liability how to play the victim compensation cases,due to the subjective fault degree and reason of the parties force strength and predictability rules,the theoretical circle in these cases responsibility differences.In view of the above facts,the special physical victim infringement cases,the infringer of special physical fitness whether the victim’s damage should bear the responsibility and what responsibility within the scope of responsibility,have the need to study and legislation.Judicial practice in our country,on the practice of special physical fitness the victim tort damages cases,can be divided into the following point of view,the first is the victim of special physical fitness for expanding does not belong to the infringer to reduce the damage liability legal reasons,the infringer shall bear full liability to pay compensation;The theory of the second kind is the power of reason,the victim’s special physical fitness for expanding the damage have a certain reason,the infringer only on their actions cause to the damage caused by the special constitution scope of infringement cases shall bear the liability for compensation for victims;The third kind is the special physical damage caused by the infringer,subjective minimal degree of fault or negligence,the distance between the actor’s behavior and damage consequence is too far away,the infringer does not assume liability to pay compensation.Such cases in the judicial practice in our country most applicable reason force theory of Shared responsibility,namely the second theory,presents the flexible of the verdict,the doctrine of the mean of the road.In theory the main draw lessons from foreign rule of "the shell head" point of view to study and explore,"eggshell head rule" applies whether transplantation of domestic,have different opinions about,after all,different national conditions,applicable environment is different,in addition,the "eggshell head" rules of its own theoretical basis will be fair and reasonable to solve the Special physical Damage is also questionable.Special physical damages because of the special physical intervention to further complicate causality in such cases,combined with the cases of infringement type diversification,the infringer subjective factors such as fault,one size fits all compensation is not reasonable to solve the problem,"eggshell head rule" and "rules" cause there are some limitations on apply,all-or-nothing manner were too rigid,not completely solve the problem of special physical fitness the victim tort compensation,in some special cases and not fair and reasonable share the responsibility.In this paper,according to the behavior of the combine with the victim’s damage degree,could be divided into two classes of such cases,one is special in combination with the direct physical damage,can also be called real special constitution of infringement,the infringer of the victims of the infringement act directly on the special physical fitness of special parts and cause damage;The other is the indirect combination of special physical damage,can also be called not really special constitution of infringement,the infringer tort cause special constitution of the victims of the original disease cause,embodied in "caused by primary damage associated with organic damage".On the basis of classification,and then to comprehensively consider the subjective fault of infringer morphology,damage prevention factors related to the efficiency and damage of predictability,analysis and value judgment,and typed on a standard build.