Infringement Research Supplement Responsibility

The Tort Liability Law will guarantee that the perpetrator enjoys sufficient freedom of action and timely and effective relief of the infringed person as the highest value pursuit.In most cases,there will be no conflict between the protection of the perpetrators’ freedom of action and the timely and effective remedy of the infringed person.However,sometimes there is a serious conflict between the two.In this case,trade-offs and choices are needed.The supplementary liability for infringement in China came into being at this time.The supplementary liability for infringement can not only guarantee the defendant to enjoy sufficient freedom of action but also enable the infringer to receive timely and effective relief.It compensates for the functional defects of the previous tort liability law and enables To safeguard the legitimate rights and interests of both parties,it has extremely important theoretical value and practical significance.The establishment of the tort supplementary liability system helps build the modernization of China’s legal system.However,it is precisely because the tort supplementary liability system is China’s unique tort liability system,so many aspects of the tort supplementary liability still need us to continue to discuss and analyze.There are still some problems in the relevant legal provisions on tort supplementary liability that must be solved.China should improve the related deficiencies in the system of supplementary liability for infringement so that it can fully exert its functions of preventing damage and filling up damage.This is the main purpose of this study.This article consists of the following three parts:The first part is an overview of the tort supplementary liability system.First,by introducing the concept of the concept of supplementary liability for infringement by experts and scholars in China,based on the analysis and analysis of the relevant expressions of the concept of infringement supplementary liability by experts and scholars,the author has made a more comprehensive statement of the concept of supplementary liability for infringement.At the same time,the characteristics of supplementary liability for infringement are further analyzed,namely conditionality,sequence and complementarity,and dependency.Secondly,it introduces the type of supplementary liability specified in China’s Tort Liability Law,that is,the legal type of supplementary liability for infringement.Again,analyzing the constitutive elements of China’s tort supplementary liability,theoretically there is a big controversy on the constituent elements of the tort supplementary liability.Some experts and scholars believe that it should be a “three essentials”,and some experts and scholars believe that it should be “four essentials”.From various angles of analysis and comparison,the author believes that it is more reasonable to adopt the "five essentials theory." Finally,through the comparison and analysis of the relationship between infringement supplementary liability and unreal joint and several liability,share liability,infringement and joint liability,the relationship between the tort supplementary liability and related liability is clarified.The second part is the inadequacy of supplementary liability for infringement.By studying the specific provisions of China’s legislation on the supplementary liability of infringement and the problems existing in judicial practice,we pointed out the inadequacies of China’s tort supplementary liability.First,the scope of liability for supplementary liability for infringement is not clear.The scope of the supplementary responsibility of the supplemental responsible person in China is not clearly defined,that is,it does not clearly define the factors that affect the scope of responsibility that the supplementary person should bear.Second,the supplementary liability for infringement lacks the relevant provisions for the right of recovery.There is much controversy among the theoretical circles as to whether the right to recover should be given to the responsible person.The author through a multi-angle analysis,that the supplementary responsible person should have the right to recovery,which is very important for the protection of the legitimate rights and interests of the supplementary person.Third,the form of litigation for supplementary tort liability is not clear,that is to say,the tort law of the tort liability law of our country has not been stipulated in an explicit manner.The form of litigation for the supplementary liability of tort in China is not clear,resulting in obstacles between substantive law and procedural law.In order to enable victims to receive timely and effective relief and protect the legitimate rights and interests of all parties,China should clarify the form of litigation to supplement liability.The third part is the perfect suggestion of supplementary liability for infringement.Through the research and analysis of the problems existing in the supplementary liability for infringement,the author tries to put forward corresponding perfect suggestions for the problems existing in the tort supplementary liability.First,improve the scope of liability for supplementary liability for infringement.After a series of analysis,the author identified two factors that affect the range of supplementary responsibilities,namely,the degree of fault and reason of the supplementary responsible person.In judicial practice,liability should be determined based on the proportion of faults that the supplementary responsible person should have and the force it should occupy in the entire damages.Second,establish the right of recovery of supplementary liability for infringement.China’s Tort Liability Law shall establish the right of recovery of supplementary liability for infringement.That is to say,the infringing supplementary liability person shall have the right of recovery and shall make clear provisions on the subject matter of the right of recovery and the scope of recovery.Only in this way can the victim and the While the infringement supplements the lawful rights and interests of the responsible person,the principle of infringement of responsibility and the principle of fairness in civil law are reflected.Third,clarify the form of litigation to supplement liability for infringement.Our country’s legislation should establish the litigation form of the necessary joint lawsuit implicated.Only in this way can the legal choice given to the victim be fully reflected.