The Dissertation Of The General Provision Of Equitable Liability

Fair responsibility is the proper thing in the process of rapid development of social civilization and legal system.It embodies the principle of fairness in civil law theory.The original intention of the legislator to write fair responsibility into the law is that when the victim is unable to fully receive relief through the dual attribution system,the actor appropriately shares the victim's loss to compensate the victim appropriately.Regrettably,the General Provisions of the General Principles of Civil Law and the Tort Liability Law are too general and the operation is not strong,which leads to the abuse of judicial practice.With the compilation of the Civil Code's sub-rules in the past two years,whether the general clause on fair liability should continue to be included in the “infringement liability compilation” has once again caused controversy in the academic and practical circles.This paper intends to explore the theoretical legitimacy of the existence of fair liability from the perspective of legal philosophy and legal function by combing the current legislative provisions and judicial application in our country,and the existence and judicial application of the general clause of fair liability in the Civil Code.Make more constructive comments.In addition to the introduction and conclusion,this article has four parts:The first part is to sort out the legislative status of the general clause of fair liability and the status quo of judicial judgment,and raise the problems of the general clause.It can be seen from the combing that the current legislation in China has too general provisions on the general clause of fair liability,which is not conducive to restricting the judicial application of the article.There is no obvious boundary between the general provisions and the specific provisions.In terms of judicial adjudication,there are many problems such as the expansion of the applicable type,the ambiguity of the constituent elements,the unreasonable scope of compensation,and the lack of consideration of consideration factors.The second part is the elaboration of the theoretical basis of fair responsibility.Through analysis,it can be known that fair liability is not a liability principle,but a loss sharing mechanism;fair liability is the system extension of equity in the field of tort law,and it is beneficial when the binary system cannot cover all disputeresolution methods.Balance the interests of the parties,make up for the insufficiency of universal justice,and achieve partial case justice;fair responsibility has its independent value and justification foundation.The third part describes the scope and constituent elements of the general clause of fair liability.According to the analysis,the scope of application of the general clause of fair liability should be limited to the types of cases such as good intentions,object damage,sports competition,traffic accidents,manager compensation,etc.The general provisions of fair liability must meet five requirements.: First,there must be violations and damages;second,there is a considerable causal relationship between the damages and acts;third,both parties are not at fault;fourth,there is no space for faults and no liability for faults;fifth,failure to share the loss will result in extreme unfairness.The fourth part introduces the main body restrictions and consideration factors of the general clause of fair liability.According to the analysis,the applicable subject should be restricted to the victim and the actor,and the extension of the actor should be cautiously determined.The limitation can only be interpreted as a person who has implemented a specific behavior,and the beneficiary other than the actor is not the applicable subject.Under normal circumstances,the judge should fully consider the seriousness of the damage caused by the infringement when applying the general clause of fair liability.Whether the economic gap between the two parties is too large,whether the purchase of the insurance is enough to make up for the damage,and the complexity related to the party itself Circumstances and other special factors,after fully considering these factors,can make fair and reasonable referee results.