Research On The Scope Of Application Of Joint And Several Liability For Tort

As an important type of tort liability form of most people,joint and several liability for tort has its own unique advantages in the protection of the rights of the victims,and so it is favored by the national laws,our country also established the important status of the joint and several liability in law.However,after the advent of risk society in the 20 th century,the damage filling function of tort law in China has been constantly improved.In order to provide adequate and comprehensive relief to the victims,the scope of application of joint and several liability for tort has been continuously expanded.As a result,the scope of application and constitutional standards of joint tort have been continuously relaxed.The statutory principle of joint and several liability has also been broken through by analogy.The boundaries between joint and several liability and other minor tort liability forms such as unreal joint-liability,supplementary liability is blurred.The confusion applies in judicial practice seriously damages the strictness of joint and several liability and the authority of law.Now that the civil law is being edited,so we should perfect the scope of the application of joint and several liability combining with the social development in our country as well as the comparison experience to avoid the abuse of joint and several liability in practice.This paper is divided into four parts.The first part is the basic theory of joint and several liability for tort.Joint and several liability for tort is a kind of tort liability that two or more than two tort-feasors take full responsibility of tort liability jointly in accordance with the law or agreed by the parties which therefore cause internal debt relationship;Its main features are: the subject of liability is plural and interrelated,and the undertake of the liability is holistic and statutory,and the liability is recoverable between the the subject of liability;Its legal effect includes external effectiveness and internal effectiveness.External effectiveness mainly solve the relationship between the tort-feasors and the victim and internal effectiveness mainly solve the division and commitment of the share of internal liability between the tort-feasors.Its legitimacy mainly includes three aspects.The advent of the risk society makes the tort law start to pay attention to its damage filling function which provides a realistic basis for the full development of joint and several liability for tort;The traditional theory of distributive justice and correct justice provides theoretical basis for tort and several liability for tort;Distributive justice and correctional justice provide theoretical support for the establishment and internal distribution of joint and several liability for tort through legal analysis.The system value of joint and several liability of tort mainly includes three aspects.First of all,it can realize social justice.Then it can guarantee and spread risk.The last,the victim's burden of proof can be reduced and the efficiency of the program can be improved.The second part is about the analysis of the scope of application of joint and several liability for tort and the existing problems in China.The cases of joint and several liability in tort law of China mainly include joint torts,joint dangerous actions,superimposed separate torts and special infringements by law.The definition of "commonality" in joint torts is not uniform,and the definition of the standard largely influences the scope of the joint and several liability for tort.There are different opinions on whether tort-feasors can eliminate the application of joint and several liability for tort by proving that there is no causal relationship between their actions and the damage.There are also different opinions on the judging standards in theory and practice of the superimposed separate torts.In the case of special infringements by law,there is a suspicion that the internal logic of joint and several liability for tort has been broken due to the overemphasizing about its policy value.Overall,the problem of the scope of application of joint and several liability for tort in our country mainly includes four aspects.First of all,the goal of legislative value is single.Secondly,the legal system is imperfect.Once more,the legal basis is chaotic.The last,joint and several liability for tort is abused in judicial practice.The third part is the foreign comparative study of the scope of application of joint and several liability for tort.France has not made provisions for joint torts,and "theory of the overall burden" has been developed to solve this type of problem.The joint and several liability rules of joint dangerous actions are only recognized in the field of hunting accident and gang infringement.In Germany,the three kinds of infringement behaviors including common joint torts,joint dangerous actions and instigation and help behaviors are included in the scope of joint torts.Among them,common joint tort requires the tort-feasors have common purpose.The joint and several liability of joint dangerous actions is only applicable to the tort of alternative causality and accumulating causality.In Britain,the rule of joint and several liability for tort is mainly established through the cases,and the joint and several liability for tort does not require the meaning of contact,but only producing the common damage results.Instructor and helper shall also bear joint and several liabilityfor tort.The mode of responsibility for joint dangerous actions has not yet formed a unified opinion.Joint and several liability for tort in the United States initially applies to consistent actions and the act of violating a common obligation.Then it's applied widely by breaking through joint torts.Many states began to reflect and reform joint and several liability for tort in the 1980 s.These measures include reducing joint and several liability for tort applying to defendants who have fewer faults,restricting joint and several liability for tort applying to non-economic damage areas and restricting joint and several liability for tort applying between intentional infringement defendant and negligence defendant.We should learn from the foreign cautious attitude and restrictive trend of joint and several liability for tort to solve the problem of inappropriate expansion of the scope of application of joint and several liability for tort in China.The fourth part is about the perfect path of the scope of application of joint and several liability for tort in China.According to the above analysis of the problems in reality,combined with the present social background in our country as well as the foreign comparison experience,first of all,we should clear the legislative value orientation of joint and several liability for tort.Regulating the system design of joint and several liability for tort.In generally,limiting the application of joint and several liability for tort from the two aspects of setting the minimum quota of responsibility and the strict limits on the application of policy joint and several liability for tort.In terms of the specific adjustment of the scope,limiting "intercommunity" of joint tort for joint intent,admitting that the apply of joint and several liability for tort in joint dangerous actions can be eliminated by proving that there is no causal relationship between actions and the damage.The judging of the superimposed separate torts should insist on strict standard,that is,every tort has a cause-and-effect relationship with all the damage.The application of special infringements by law should avoid paying too much attention to its policy value to legislate passionately which will lead to break through its internal logic.Secondly,strictly adhere to the legalization of joint and several liability for tort in judicial practice and avoid the analogy applies and the confusion of the application of joint and several liability other most people's tort liability forms.Finally,perfect the most people tort liability system,and clear the boundaries between each responsibility form,strengthen socialization of damage relief at the same time.Prompt the application of joint and several liability for tort to return to its internal logic by giving full play to the diversified way of responsibility sharing coordinat.