On The Capability For Tort Liability Of Nature Person

More than two thousand years ago in the Roman law has been the prototype of the system of capability for tort liability, it is extremely far-reaching influence on later generations countries legislation. Through the investigation of the two legal systems, we know, both judicial precedent of Anglo-American law system of and related legislation of the civil law countries, mostly formed a relatively perfect system of capability for tort liability. Obviously, this system is very important, not only is the general practice in different countries, the theoretical foundations of tort liability system,but also is communication link of many important system in tort law. The current legislation does not explicitly provide system of tort liability ability theory and practice have different views about whether there is infringement responsibility system in China, which has caused a lot of controversy and application problems. Under this background, it is necessary for us to analysis and restructuring the system of capability for tort liability of nature person, and to reflect the article 32 of the tort liability law of PRC. This is not only to fill the legislative loopholes, can also reinforce the tort of theoretical foundation, better guide our judicial practice.Apart from the introduction and the conclusion, the text consists of four chapters.Chapter 1: Tort liability system overview. First of all, we need to define the concept of tort liability ability. Since The current legislation does not explicitly provide system of tort liability ability, and more from a theoretical point of view to define it, but the views are rather differences between scholars. From the perspective of Comparative Law, the Japanese civil code had been clearly defined in tort liability capacity system. Based on the related discussion of many Japan scholars and Chinese scholars, this paper argues that tort liability ability is the ability of actors to recognize the legal liability consequence of their acts. Subsequently, we discuss the necessity of tort liability ability. Academic circles have views to question the necessity of tort liability system exist independently, or think it is just a kind of capacity for civil rights, or think it can be replaced with the capacity for civil conduct. This paper argues that tort liability ability is different from the civil right ability and the civil conduct ability, which should be exist as an independent system.Chapter 2: The function orientation of tort responsibility system. First of all, we summarize various theories about the function about tort liability ability system. Generally speaking, our country scholar's ponder is not profound, and not formed a systematic knowledge system. On the contrary, scholars of the Japanese civil law have make a very deep study for this question, and formed "the theory of deterrence to fault ability”, "the theory of deterrence to tort liability” and "the theory of constitutional requirements of tort liability”. Then, on the basis of the above-mentioned views, this paper obtained, tort liability ability is neither a deterrent for fault of actors, and is not the constitutional requirements of the tort liability, but a special deterrence which is designed for protect the specific group.Chapter 3: Specific judgment of tort liability ability. First of all, we summarize and assessment the legislative mode of relevant national about judgment standard of capacity for tort liability. Specifically, the judgment mode of capacity for tort liability can be summed up in three kinds: subjectivism and objectivism and combination. These three modes all have their own advantages, but it also has a number of shortcomings. Then, on the basis of the reflection of the three judgment model, this paper argues that combination model combines the advantages of the other two modes, and can avoid the shortcomings of the other two modes, which should be used in our country. Specifically, on the one hand, my country should use the objective elements, such as age, to judge whether actors have tort liability capacity in principle; on the other hand, in special circumstances, we also need to take other subjective element to ease the harsh nature of the criteria for judging the objective criteria, so that we can scientific and reasonable judge about whether actors have tort liability capacity.Chapter 4: review of the article 32 of the tort liability law of PRC. First, we pointed out existence question of the article 32. Article 32 is related to the guardian responsibility, which inevitably involves the tort liability ability of ward issues. Review the paragraph two of article 32, there are two problems at least: on the one hand, which confuses the capacity for civil conduct and the capacity for tort liability, and with the concept of civil conduct ability replace the tort liability ability; on the other hand, which also mistakenly take the objective property as tort liability ability criterion, distorted the nature of the tort liability ability. Afterwards, based on the above analysis, we rebuild the guardian responsibility. This paper argue, we should use the tort liability ability replace the civil conduct ability and property ability, and judge ward's tort liability ability depends on the fact whether actor meets the age criteria in principle. In exceptional circumstances, on the basis of comprehensive consideration of the subjective elements such as actor or tort, the judge can take the ward which doesn't meet the age criteria as having the capability for tort liability.