Expansion Of Equitable Liability Principle And Legal Restriction

The equitable liability principle refers to the parties are not legally wrong to the occurrence of damage,and does not apply to the no-fault liability principle,the people's court orders the parties to share the loss according to the actual situation.The equitable liability principle in our country followed the Soviet Union's Civil Code in 1922,which indirectly followed the second draft of the German Civil Code.Almost all of the countries and regions of the world,in terms of their legislation to the equitable liability,their legislation limits using of the equitable liability principle to the cases of damages caused by the person with limited capacity,counties and regions which historically used to adopt a broad sense of the equitable liability have already abandon the legislative model,on the contrary,the equitable liability principle in our mainland becomes the only case on the comparative view.General Principles of Civil Law of the People's Republic of China(Hereinafter referred to as the "General Principles of Civil Law")provides the equitable liability principle,and till today,the voice of abolish this principle is gradually declining,in return,the equitable liability principle enjoys high popularity in legal practice,as a consequence,lots of verdicts based on the equitable liability principle are constantly emerging.Meanwhile,the problem of abusing of the equitable liability principle has become increasingly more serious,to some content which is the biggest criticism.Scholars and researchers are becoming focusing on the limitation of applying the equitable liability principle to solving legal disputes.On the basis of the comparative legislation investigation,this paper starts from the positive law and judicial practice of our country.Firstly,it discusses the specific provisions of the empirical law which belong to the equitable liability principle.The legislative model of the equitable liability principle in our country adopts the "general rule + specific provisions",scholars' opinions vary from one to another on the specific provisions of the equitable liability principle.The scope of the specific provisions of equitable liability principle is based on the definition of equitable liability principle and constituent elements,given that not all the equitable liability principle cases include a tort delivered by the actor,this paper argues that equitable liability principle should be divided into two categories,one is the equitable liability of actors,the other is the equitable liability of compensation of the beneficiary.This division can conclude all terms of the equitable liability principle as well.The equitable liability of actors include Article 24 of Tort Law,and damage caused by people who conduct torts with full civil capacity temporarily unconscious or out of control,anyway,the Article 24 of Tort Law is a general clause.The equitable liability of compensation of the beneficiary include Article 157 of the Opinions on the Implementation of the General Principles of the Civil Law of the People's Republic of China.Regarding that responsibility of the guardian of our country is no-fault liability,Article 32 of the Tort Law is excluded in the equitable liability principle.In Article 23 of Tort Law,righteous compensation should apply to spontaneous agency rule.In Article 87 of Tort Law,the exact wrongdoer cannot be found out,which made it impossible to fit for the equitable liability principle.In the judicial practice,cases of the equitable liability principle emerge in an endless stream,covering almost every type of tort liability.The equitable liability of compensation of the beneficiary is mainly manifested in the practice of the victim who suffered loss in the performance of the contract,while the contract party has no fault.The equitable liability of actors include students' injury in school,injury caused by taking part in sports activity and such.After that,this paper discusses the theory of equitable liability principle.Summarize the traditional controversy over status of the principle of equitable liability principle,this paper approve that equitable liability principle is one of the principles of imputation,since liability is essentially a matter of obligation and equitable liability principle is a matter of obligation,regarding it as imputation principle does not contradict fault liability and no-fault liability.The equitable liability principle has both theory basis theory but also the necessity of existence in practice.The equitable liability principle embodies corrective justice and case justice.The equitable liability principle should be comprehensive in the application of the various considerations,including the degree of damage that the victim suffered,economic situation of each party,insurance and even legal causal relationship,considering that above factors in specific orders have little operability.Finally,this article discusses the limitation of the equitable liability principle,the first is the scope of application,equitable liability principle should not only apply to property damage cases,but also apply to personal injury cases,but should not be applied to mental damage,because the amount of mental damage is uncertainty and mental damage has compensatory and punitive character.The equitable liability principle should not apply to indirect damage and pure economic loss,since both have a range of uncertainties.The second is components limit,that is,the parties are no fault,can not apply to the principle of no fault liability,causal relationship,the damage must be huge and should be "rights" damage.The third is the order application restrictions,firstly it should be consistent with the components of the equitable liability principle,which is the basis for the application of equitable liability principle,and then follow the order of from specific provisions of the fair responsibility to the general terms.And finally,the consideration restrictions,including the benefit factor restrictions,legal relationship restrictions.