The Interpretation And Improvement Of Article 49 Of Tort Liability Law

The liability for motor vehicle traffic accidents is a typical dangerous liability in the traditional civil law theory.The dual criteria of “operation control” and “operation interests” for determining the responsibility subject of motor vehicle traffic accidents evolve from the doctrine of dangerous liability and compensation theory respectively.However,currently legislature's viewpoint and the mainstream views of the academic community have a biased understanding of the dual criteria,which leads to the unreasonableness of the rule of responsibility subject,based on the dual criteria as a theoretical foundation,of Article 49 of Tort Liability Law.This rule has also been repeatedly challenged by judicial organ.Starting from the theory of dangerous liability,this paper expounds on the fallacies of operation control standard from the viewpoint of controlling the occurrence of danger in existing research,clarifies the true meaning of dangerous controlism,and reflects on the rationality of compensation theory.In addition,this paper reconstructs rules of responsibility subject of Article 49 of Tort Liability Law in accordance with the doctrine of dangerous imputation and correspondingly establishes rules of responsibility bearing between the owner and the user of motor vehicle with a view to benefiting the judicial practice and the compilation of subdivision of Tort Liability of the Civil Code.This paper is divided into three parts except the introduction.The main contents are as follows:The first part explains the scope of application of Article 49 of Tort Liability Law.The Article 49 of Tort Liability Law is the product of the legislator's classified treatment of the separation of related subjects against motor vehicle.Also,the clear scope of application is conducive not only to the correct application of rules,but also to judging the rationality of rules.In view of the academic debate on whether the Article 49 of Tort Liability Law should be used as the general rule for determining the subjects of dangerous liability when subjects of motor vehicle are separated,this paper,on the basis of reviewing the existing viewpoints,uses the analysis method of homogeneous factor extraction and system interpretation and is of the opinion that the scope of application of Article 49 should be limited to the situation where the user obtains rights to use the motor vehicle with the owner's consent with the result that the user is not the same person as the owner of the motor vehicle.The second part reflects on and improves rules of responsibility subject of Article 49 of Tort Liability Law.The current legislation and doctrines understand the operation control standard from the perspective of controlling the occurrence of danger,that is,subjects of dangerous liability are in a position to be able to actually control the occurrence of danger of motor vehicle.However,this understanding completely conforms to the fault liability thinking and contradicts the conclusion that is the premise of dangerous liability theory and that dangers of modern society,to a certain degree,are uncontrollable.From the perspective of the doctrine of dangerous imputation,this article considers that both owners and users are open to the danger and control the danger,and owners are able to disperse risks more conveniently.Thus both owners and users should bear the dangerous liability.Among the above three dangers,the true meaning of dangerous controlism means that those subjects closely related to dangers should share damage caused by dangers,because owners have a stable ownership relationship with dangers and users actually control dangers directly,both of which are closely related to dangers.However,standards of operation interests derived from the theory of compensation have lost their substantive meanings due to the generalization of the concept of interests and therefore should be abandoned.In addition,the rule of common subjects of dangerous liability accords with distributive justice.Under exceptional circumstances,owners and users may lose the identity of subjects of dangerous liability.The third part establishes rules of responsibility bearing from the perspective of common subjects of dangerous liability.This part mainly addresses the issue of ways of undertaking responsibility externally and rules of undertaking responsibility internally between owners and users.This requires that roles of fault and causal force in internal responsibility undertaking should be attached importance to,in order to give play to functions of ethical evaluation,guidance and prevention of Tort Liability Law.In terms of ways of bearing tort liability of many people between owners and users,this article advocates specific determination in a typed manner based on the identity,fault and causal force of owners and users.With regard to the determination of faults of the owner and the user,the interpretation results of Article 1,Paragraph 4 of the Judicial Interpretation of Traffic Accident Damages Compensation shall satisfy the three conditions: the illegality of acts,the ability of owners to control and the significant increase in the risk of motor vehicle operation.Specifically,the situation in which the owner is at fault is mainly that the owner still rents or lends his or her motor vehicle under circumstances that the owner knows that the motor vehicle is defective,or that the user is not suitable for driving,or that the user violates road traffic rules.And the situations in which the user is at fault are mainly that the user still drives the motor vehicle under circumstances that the user knows that the motor vehicle is defective,or that the user is not suitable for driving,and that the user violates motor vehicle traffic rules as well as the obligation to drive motor vehicle with caution.In fault determination,the “know or should know” element and causality element should be strictly required,and burden of proof should be determined according to the principle of who claims who proves.