Research On The Judicial Application Of Regulations Of Equitable Burden-sharing Of Loss

Equitable sharing of losses is a legal system that is very fair and equitable.It avoids unfairness caused by the fact that the tort liability is not upheld and that is caused by the victim's own major losses.It also has its positive and realistic needs.The fair share of loss rule in China's Tort Liability Act adopts a "general clause + type" legislative model,which is in line with the development trend of modern tort law,but at present there are deficiencies in the general terms of this model are too abstract and less typed provisions.The inadequacy of the legislative model has made the current fair share of the loss of general terms applied to a large number of cases.This has caused a great impact on the tort liability system of tort liability law.Therefore,the problem that needs to be resolved at present is not to overstate the composition of the liability-impacting principle system,to clarify issues such as the application of the general provisions of fair loss-sharing and the types of applicable cases,so as to provide the legal provisions with the correct application of fair loss-sharing provisions.Specific measures to truly realize the fair value of the system.This article is divided into four parts,the main content is as follows:The first part,the case and the problems that emanate.Two cases of applying the judgment of Article 24 of the Tort Liability Act are introduced.The judgment results of these two cases appear to be fair and unfair,and there are many questions about the subject of application,the determination of cause and effect,and the scope of loss sharing.These problems led to the consideration of the judicial application of the fair share of loss rules.The second part is the legislative model of sharing the loss rules fairly.First of all,in the interpretation theory,the legal property of Article 24 of the Tort Liability Act is defined as the general clause of the fair share of the loss rule,and the legislative model of the “general clause + type” is adopted in the fair share of loss rules in China.Secondly,it introduces the type of fair loss sharing rules,defines the legal attributes of compensation rules as legal obligations,and briefly classifies these compensation provisions.Finally,it discusses the shortcomings of the current legislative model of China's fair share of loss rules: the general terms are too abstract and there are few types of regulations.The third part is an analysis of the status quo of judicial application of fair sharing of general provisions of losses.Through the analysis and analysis of 67 sample judgments,it isconcluded that there are issues such as the overly wide range of applicable types of cases,the inconsistent application requirements,the unclear range of loss sharing,and the arbitrarily proportional distribution of the general terms of fair loss sharing.In the fourth part,the construction of the elements of the application of the general provisions for the fair loss sharing.Both the application subject,the harm behavior and damage facts,the no-fault of both parties,the identification criteria of causality,and the considerations of factors such as consideration factors were fully analyzed and explained.The fifth part is to share the perfect proposals for the type-appropriation of loss rules.In view of the fact that China's fair share of loss rules is less regulated at present,it has been supplemented by integrating existing types of regulations,and lists some types of cases that are not suitable for fair sharing of loss rules,so as to be able to serve as judicial practice.The reference to the typed application of fair loss sharing rules.