A Study On The Tort Of The Third Party

With the expansion of social risks,the forms of infringement are becoming more and more complicated,and the third party infringement has come into people's vision and attracted great attention.Article 28 of China's Tort Liability Law stipulates that "the damage is caused by a third party,and the third party shall bear the tort liability." Academic circles generally believe that this article is about the third party tort,but there are different understandings about the legal nature of the third party tort.It is still controversial whether the third party's infringement is sufficient or independent from the plea level.Therefore,it is of great significance to study the third party's infringement in depth to distinguish different forms of infringement and to determine the allocation of specific responsibilities in judicial practice.In this paper,the author uses the methods of law analysis and legal interpretation,historical research,comparative analysis,etc.Firstly,it introduces the legal connotation of third party tort,compares the historical development of foreign law and domestic law on third party tort,and summarizes the law;secondly,it specifically analyses the disputes about the legal nature of third party tort,and sorts out the types of third party tort.Finally,combining with the current situation of legislation on third party tort in China,this paper puts forward some suggestions on the allocation of liability for third party tort.In addition to the introduction and conclusion,the text consists of three parts.The first part is about the legal connotation and historical development of the third party's tort.The third party's tort refers to a separate tort in which the third party infringes on the civil rights and interests of others by fault and has all the causal power to the result of the damage.There is no causal relationship between the infringer and the result of the damage in law,but there is a certain relationship among the act,object or subject.The third party's tort is an independent form of tort,which belongs to a special individual tort.It has legal characteristics different from the typical individual tort: the third party's act has all causes for the damage;the relationship between the tort party and the result of the damage only exists in the act,object and subject;the third party has fault,and the tort party does not require fault;Its corresponding forms of responsibility are diverse.Then,according to its legal connotation and confusing concepts such as concurrent tort,it makes a distinction.Finally,it compares the relevant provisions of foreign law and domestic law on the third party tort and its development context,and summarizes the law of historicaldevelopment.The second part is to sort out the legal nature and types of the third party's tort.Firstly,it analyses the disputes about the nature of the third party's tort in academic circles,which can be roughly divided into the third party's fault causing the defendant's exemption,the third party's cause causing the result of the damage actor's exemption and the third party's liability caused by the third party's tort.Most of the existing theories discuss the third party tort from the level of defense,which has the effect of exemption or mitigation of liability.On the basis of sorting out the disputes,it is proposed that the third party tort is a special separate tort,because in the third party tort,the third party's act is the cause of damage,and the reason for the existence of the tripartite subject is that there is an act,subject or object relationship between the person concerned and the damage,but there is no legal causal relationship between the person concerned and the result of the damage.The only real infringer is a third person.Then,according to the different types of relationship between the person concerned and the result of damage,the third party tort can be divided into three types: behavior relationship type,subject relationship type and object relationship type.The third part is about the allocation of third party tort liability.There are various forms of liability corresponding to the third party's tort.In different types of tort,how to determine the form of tort liability,that is,the specific allocation of liability for the third party's tort.This part firstly analyses the current law of our country about the third party tort liability allocation provisions and related theoretical disputes,and then distinguishes between fault and no-fault liability for the third party tort liability allocation rules put forward suggestions.In the field of fault liability and presumptive liability for fault,the third party's liability should be allocated in principle and stipulated by law separately;in the area of no-fault liability,the third party's tort liability should be clearly stipulated by law;in the absence of clear stipulation,the allocation of unreal joint and several liability means that the relationship and the third party shoulder unreal joint and several liability,and the relationship can be assumed after the liability is assumed.Claim to a third party.