Interpretative Analysis Of High-risk Liability

How to provide high risk liability in law,and whether or not to set up the general terms of this particular liability in the law of the high risk of liability,Different countries adopted different legislative attitudes.Comprehensively comparing the legislation of most countries in this field,there are three legislative models: "specific enumeration" model,"general term and specific enumeration" model,"identifying factors enumerated" model.According to the logical structure of the ninth chapter in the Tort law of the People's Republic of China,our country adapted the "general term and specific enumeration" model.The tort law adapted the lateral-vertical logical construction in the ninth chapter,according to the dangerous degree of highly dangerous operation designed different liability rules.Compared with the legislative models of the high-risk liability of other countries,there are two luminous points on the provisions of this special responsibility in our country's tort law: The first one,our country's tort law provides a single chapter of high-risk liability.It is a pioneer in the legislation of tort law in the world.This way could be propitious to comprehensively and effectively adjust the damages in the field of high risk operations;the second one,Combined with relevant policy considerations,the present law established the general term.Article sixty-ninth as a general term of high-risk liability,can be directly used as the basis for the judge's cases,but there are some limitations in the application: First,the "risk" that causes damage should be "highly risk";second,The judge exhausted article 70-76 can not find the basis of the referee,the case ruled out the provisions of 70 to 76.Due to the principle of liability without fault is applied to the field of high-risk liability,its components do not need to consider the injuring person's fault.Because sources of risk that cause damages is different,the liability of subjects of this kind of special liability is different.So the obligatory designation of infringement disputes about the high-risk liability is very complicated.Even though the principle of liability without fault is applied to the field of high-risk liability,it can still apply the system of negligence offset when determining the proportion of liability.As a limitation,the legal effect of negligence offset system can only reduce the liability of the injuring person,so there is no legal effect of exemption from liability.Aiming to break the limitation of compensation limit system,we should recognize that the principle of liability for fault can be applied to high-risk liability.That means if the victims have the ability to prove that the injuring person is at fault,the injuring person should fully compensate their losses;if the victims have no ability to prove that the injuring person is at fault,the injuring should undertake the liability of compensation limit.This can more fully protect the legitimate interests of victims.The reasons for the defense of the high-risk liability include the victim's intention,force majeure and assumption of risk.Because of the position of article 76 in tort law,there is a dispute of high-risk liability's position between two types and three types.There are two main lines in the theory of the article 76 of the tort law: exemption and reduced liability theory,independent liability theory.According to analyze the root causes of damage and the actions of causing damage,the article 76 should be positioned as a high-risk liability's reduced liability reason.But when "reducing" the liability and when "exempting" liability should combine with the judge's judgment of the extent of the victim's fault to consider and measure.In addition,the system of negligence offset can be applied to assumption of risk in a certain extent.