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On The Fair Share Of Losses Rules In Tort Law

Posted on:2018-01-10Degree:MasterType:Thesis
Country:ChinaCandidate:X WuFull Text:PDF
GTID:2356330515458873Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
It has been a hot and difficult problem to study the fair sharing of loss rules in theory and practice.The nature of this article is to give the judge a certain amount of discretionary power to make a reasonable allocation of the loss,and to pursue the fair social value.However,in practice,there are many problems in dealing with specific cases only by abstract and vague legislation,so it is necessary to clarify the legal structure and the specific application of the rules,and to refine the applicable standards to regulate their application.This paper uses case type analysis and comparison methods,law and economics analysis,attempting to sort out the relevant theories and typical cases to study the FSLR in tort law system and its specific content,scope and standard of the fair loss sharing rules,to provide a reference for the future of the referee.The introduction describes the background and research value of the topic,reviews the domestic and international legal provisions and research results,and reveals the further development trend.The text is divided into four parts:The first section is to propose the problem,that is,to find the problems to be solved in the judicial practice through the comparison of the typical cases.The case in the table shows that the judges' perceptions of the loss sharing rule are different,and results are different.Some judgments combined with specific facts on the actual situation to make a statement,and some judgments are generally mentioned.On the one hand,this is due to the differences in the quality of judges and the differences between the case,on the other hand,because of the lack of specific legal standards.In the second section,the author analyzes the general rules of fair sharing loss rule.First of all,it explains the concept and system value of fair sharing loss rule;secondly,it clarifies the applicable rulesbetween Article 24 of the "tort liability law" and Article 132 of the "civil law";thirdly,it analyzes the difference between the FSLR and imputation principle;and finally expounded the composition of the FSLR law.The third section is divided into six categories according to the actual situation of the application of the FSLR:first,courageous in uncertainty,unable to bear the infringer or non infringement case of people;second,the emergency damage situation;third,no fault,the full civil capacity without consciousness or loss caused by out of control situation;fourtn,multi-storey buildings,throwing or falling objects damage situation;fifth,geffalligkeiten damage situation;sixth,caused by a loss against movement.The fourth section discusses the future trend of fair sharing loss rule.Through the in-depth analysis of the historical limitations of fair sharing loss rules,and through the analysis of the above conclusions,we hope to be able to provide guidelines for China's judicial review.
Keywords/Search Tags:Fair share loss rule, Empirical study, Application, Guidelines
PDF Full Text Request
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