A Study On Coincidence Between Negligence And Causation And Its Solution

In the contemporary tort law,whether in the common law system,or in the civil law system,both negligence and causation are regarded as the constituent elements of the negligence liability,in order to limit the scope of liability.And the determination of the scope of liability are depended on the predictability of damage both in the two legal systems.In order to limit the scope of liability,the causation is constantly given more rich connotations,such as "reasonable predictability","equivalence",etc.,it means whether causation exists or not rely on the judgement of whether the damage is within the reasonable foreseeable range of the perpetrator.As a result,causation is divided into factual causation and legal causation.But reasonable predictability also is the content of negligence,and it is consistent with the reasonable predictability in causation both in the form and in essence.At this time,coincidence between negligence and causation occurred.But causation in the tort law is only a matter of fact causation,used to show a factual causal chain between behavior and damage and determine the establishment of tort liability.The legal causation is only the product of the expansion in function of causation,its essence is a value judgment and a tool used for limiting the scope of liability,it has gone beyond the range of causation.The coincidence between negligence and legal causation not only weakens the systematic function of the negligence liability,but also reduces the judicial efficiency and the effectiveness of law.Therefore,it is necessary to minimize the coincidence between negligence and causation.This paper uses the comparative analysis method to analyze the theoretical model of negligence and causation in common law and German law respectively.It is found that common law does not take effective measures to restrict the coincidence between negligence and causation.In German law,negligence and causation are limited to the inspection of behavior and damage respectively,in order to achieve the purpose of narrowing the scope of the coincidence between negligence and causation.However,this paper argues that the German law is not the best solution to the problem,but rather that the function of causation should be limited to the provement of factual causal chain between behavior and damage.Only in this way can causation maintain its factual characteristics.And the function of inspecting the reasonable predictability of damage will be borne by negligence.As a result,the function of causation is limited to the establishment of liability,and the function of limiting the scope of liability will be borne by negligence and other factors,in order to achieve the rational allocation of function between negligence and causation.