The Research Of Special Physical Damage Compensation

At present,special physical tort cases is increasing.In China,it remain a great controversy both among theoretical and practical circle.On the one hand,applications of China's legal norms to cases of the kind have not yet been expressly stipulated.On the other hand,cases of the kind are more complex than the general personal tort cases.Therefore,this paper refers to two typical tort cases in which the victims have the special physical.By comparing and analyzing these two cases,the author points out major disputes in these two cases,the influence of the existence of the special physical on the confirmation of fault requirements as well as the influence of the special physical on the constitution of causality.As the saying goes,“Come straight to the point,and introduce the concepts first.” Thus,it is necessary to introduce the legal interpretation of “special physical”.“physical” appeared first as a medical terminology.It has a wide scope of applications.Therefore,the “special physical” defined in law is undoubtedly different from the medical one.By collecting and analyzing corresponding laws,and based on China's current judicial practices,the author summarizes the definition of “special physical” in special physical tort cases,which refers to the physical of victims to be frailer than that of the ordinary people.Next,this paper focuses on analyzing two disputes,and expounds with relevant theories abroad.Following that,the current theoretical and judicial practice status of China is analyzed.Finally,the author comes to corresponding conclusions after a comparative analysis.In principle,a tortfeasor is liable for all consequences resulting from his or her tortious activities leading to an injury to another person.This is an important reflection of the principle of indemnity stipulated in the tort liability law.However,in China,there are no unified measures of indemnity for the judge to follow during the trial of special physical tort cases.For that reason,there are three circumstances concerning tortfeasor's liability for damages resulting from the wrong act,including full liability for indemnity,partial liability for indemnity and no liability for indemnity.This paper proceeds from the fault requirements.By analyzing the current fault theories,the author thinks that the special physical cannot constitute the fault defined by the tort law.Thus,the judge should be careful with the application of the principle of contributory negligence.Next,specific standards for the special physical tort cases to confirm faults are clarified to differ from the general personal tort cases.Then,the causality elements defined by the tort law are theoretically analyzed.Because of lacking a quantitative causality judgment theory for the special physical tort cases,the “eggshell skull principle” and the causative potency are alternatively used.Concerning the problem,the author briefly expounds on the mainstream causality theories in two legal systems,and compares advantages and disadvantages of different causality theories.Finally,based on measurement of legal policies,it is suggested that the principle of “eggshell skull principle” is applicable to handling cases of the kind during China's judicial practices.Finally,based on the “eggshell skull principle”,this paper further proposes clear restrictions concerning applications of the “eggshell skull principle”.In terms of the principle of indemnity,the author suggests that full liability for indemnity on the part of the tortfeasor should dominate with mitigated punishment at judicial discretion as a supplementation.This helps transfers and applies the theoretical analysis of this paper to judicial practices.