Font Size: a A A

On The Thesis Of The Tort Of Civil Craft-from The Perspective Of The 71 Provision Of Tort Law

Posted on:2018-03-23Degree:MasterType:Thesis
Country:ChinaCandidate:X Y ZhouFull Text:PDF
GTID:2346330542453669Subject:Law
Abstract/Summary:PDF Full Text Request
The article 71 of the Tort Law stipulates the civil aircraft followed by article 123 of the General Principles of the Civil Law.But there are still some differences among article 123 of the General Principles of the Civil Law,Civil Aviation Law and a serious of international convention on civil aviation regulations.In these differences and conflicts,there is a deep meaning to interpret the tort liability priciple,responsibility established,responsibility imputation principle of all the elements of the article 71 of the Tort Law to keep the coordination between the department and the harmony between the domestic and international law.For tort liability principle of the civil aircraft,the international law is based on the prior contract relationship,adopoting different liability principles according to different types.Firstly,the civil aircraft make damages to passengers injuery compensation adpot "double gradient imputation principle" and adopt strict liability principle on the luggage and freight consignment.Secondy,the civil aircraft make damages to the third party who are on the ground or on the water adopt the no-fault liability principle.The legislation of the Civil Aviation Law mainly draw lessons from the Warsaw convention,so its liability principle got a bit chaos.In the era of legal globalization,the “strict liability“ of the article 71 of the Tort Law is totally gear to the internation convention.In the balance of protecting freedom and keeping safety,tending to protect the weak has internal legal basis.The behavior subject of civil aircraft infringement is a little vague in legislation.The right thing is to expand interpretation on purpose on the word “civil aircraft”.The concept of the aircraft should be expanded from “matter” to “air transport behavior of aircraft”.For the damages which be caused by the third party,the tort subject should be explained as “the facilities of the aircraft”?”the personnel carried by the aircraft” and “the articles on the aircraft”,besides “aircraft”.As for the modality of torts,there is no need to distinguish “accidents” and “events” like the foreign law,the term “event” should be fine.In addition,the article 71 of the Tort Law did not manifest the period of the infringement of the civil aircraft,so it's need to be explained by virtue of “up and down aircraft” of the Civil Aviation Law.There is a big controversy about the scope of “up and down aircraft” in the educational circles.four-requirement theory that Chinese scholars hold would be more proper.It only provides “operator” as the subject of liability,but the subject of liability of the Civil Aviation Law still contain the carrier.In fact,the carrier and the operator are two different subjects,the carrier emphasizes the transport contract relationship,and the operator emphasizes the control of the civil aircraft.the “operator” of the article 71 of the Tort Law should be explained expandedly,that is,the extension of the “operator” of our country contains the “carrier”.The application of the Tort Law and the Civil Aviation Law should be followed by these rules: if there is no modification on the Tort Law,the Civil Aviation Law should be applied;if the Civil Aviation Law has been modified,the Tort Law should be applied.Specific to the exemptions of the civil aircraft infringement,although the regulation of the Tort Law and Civil Aviation Law is not the same,the Tort Law does not modify the regulation of the Civil Aviation Law,except the “intention of the victim” regulated by the Tort Law,other exemptions still could be applied.
Keywords/Search Tags:The Tort of the Civil Aircraft, Article 71 of the Tort Law, Liability Establishment, Responsibility
PDF Full Text Request
Related items