Applying Fair Responsibility From The "Discussion Case"

Fair liability is an important legal system established by China's Tort Liability Law.Since its inception,it has continuously caused debates in the theoretical and judicial practice circles.Various scholars have continuously explored and developed this theory,but in the judicial practice The abuse of fair liability has not been resolved.Due to the lack of uniform and detailed provisions of the law,fair liability has caused many socially influential cases,including the “smoking advice case” and the “Peng Yu case”,in real life practice,which has triggered the whole people's support for the elderly and “not to persuade”.The moral crisis has caused serious damage to the social harmony and stability and to the establishment of the authority of the judiciary.As the various opinions of the theoretical community have been expressed and no unified answers have been formed,the law on fair liability in the Tort Liability Law of our country remains ambiguous.Therefore,the settlement of the problem is passed on to the judicial practice community itself.Due to the lack of relevant legislation and judicial interpretations,there have been many abuses of fair responsibility in the practice of judicial practice.For example,in the case of “old man smoking is exhorted to death” in the hot debate on Internet,the court of first instance cited fair liability and dissuaded the bearers to take responsibility in the society.Aroused strong repercussions and triggered great moral discussion.The case was arbitrated according to law after being tried by the court of second instance.The public opinion crisis caused by this case was able to end.It can be seen that the use of fair liability does have excessive discretion in the practice of judicial practice.Problems such as unclearness,and poor application will have an impact on the stability of social morality and public order.Therefore,it is necessary to make a clear analysis.This article begins with the review of the case that the old man smokes and is exhorted to death,analyzes the controversial focus of the case,and thus leads to the problem that the fair liability has a vague and misused concept in real judicial practice.The full text consists of four parts:The first part: The first is the question.This chapter deals with the content and controversial focus of the case that the old man smokes and is advised to die.This part tries to describe the basic facts of the case in an objective and detailed manner,and summarizes the focus of the case according to the judgment of the court in the trial of the case.It also analyzes the court's first instance and second instance judgments,citing the subject of this article and clarifying the tort liability law.There is an issue of abuse of fair liability in real judicial practice.The second part: Inspecting the basic theories of the application of fair liability with extensive controversy.It mainly analyzes the relationship between the concept of fair liability,its characteristics,and the principle of imputation in the Tort Liability Act.It seeks to clarify the position of fair liability in the tort liability law due to the lack of explicit legislation,and analyzes the theoretical community's responsibility for fairness.Controversial view.The third part: This part is the issue of the application of fair liability and carries out certain analysis.The specific circumstances of the abuse of fair liability in the actual judicial practice are reflected in the “smoking advice case”,and the legal and social causes of the abuse of fair liability are analyzed.The author also analyzes whether the fair liability belongs to the principle of attribution of liability or not.The author's point of view is that fair liability does not belong to the principle of attribution of liability,but it is only a different stage from the principle of attribution of liability and essentially belongs to the rules of loss sharing.The author starts with the principle of attribution of liability,analyzes its concepts and functions,analyzes and correlates it with compensation and compensation,and then paves the way for the author's follow-up views;the author passes the five aspects of the principle of fair liability and liability.The analysis of the attributional nature of the affiliation attempts to prove that the principle of fairness does not belong to the principle of attribution of tort liability law.Finally,by clarifying the relationship between the principle of fairness and the sharing of losses,it shows that fair liability is a special loss-sharing rule.In this part,the author conducts a detailed analysis of the position of fair liability in tort liability law,attempts to clarify the true attributes of fair liability,and analyzes the limitations of the fair liability law itself,as well as analyzes the adverse cases that cause the “smoking advice case”.The comprehensive analysis of social causes,etc.,identified the source of abuse of fair liability.The fourth part is the countermeasures for the application of fair liability.In order to make up for the problems existing in the judicial practice of the fair liability system and to give better play to the role of the fair liability system,the author put forward his own countermeasures in accordance with the relevant problems in the application of fair liability.Regarding countermeasures,the author proceeds from three questions: The first one is the applicable conditions.The second is the scope of application,the third method of application of fair liability,combined with the author's own point of view,put forward his own perfect proposal for the application of fair liability in judicial practice in the Tort Liability Act.