Judicial Investigation And Theoretical Reflection On The Recognition Of Negligence In Tort Cases

The core issues of the tort laws are the constitutive requirements and liability undertaking.The principle of imputation determines not only the constitutive requirements but also the scope and size of liability undertaking.The evolution of the imputation principles is the result of the development of productivity and production relations,and is related to the scope and degree of risk directly.Similar to the common legislation in the world,the Laws of China regard "fault liability" as the most basic principle of imputation.The core of"fault"lies in answering the essence and judgment criteria of faults.As the cause of liability and the constituent elements,"fault" has undergone a process from subjective to objective.Subjectivism is of limited guiding significance to practice,so objective criteria such as"good father"and"rational man" are produced.However,with the socialization of risk,the abstract"predictability"standard has been unable to limit the scope of liability,so the focus of legal regulations has shifted to the quantitative allocation method.By comparing the product of prevention cost and accident probability and loss result,Hand formula determines the critical point of the actor's liability.Tort cases are a kind of cases which are closely related to daily life and occur frequently.However,due to the influence of lagging legislation and complexity of the practice,there are a lot of misunderstandings in handling such cases by courts.The author has studied 100judgments which have already come into effect,and found that the judgments are suspected of being "muddy".The judgment not only reflects the obvious compromise,but also imposes unreasonable duty of care on the actor and confuses the fault of both parties.It blurs the difference between the premise and the result between the establishment of responsibility and the responsibility,and seriously deviates from the original meaning of fault liability.Tort liability law is not only about the law of liability,but also about the norm of non-liability.Tort liability law should not only provide timely relief for the victims,but also fully guarantee the freedom of action of the perpetrators.The author believes that the fundamental reason why unfair judgments and even wrong judgments emerge endlessly lies in the limited ability of judges to identify faults and the lack of in-depth understanding of the standard of fault determination from both qualitative and quantitative perspectives.In order to improve the correctness of the court's cognizance of facts and the applicable law,the author sums up the thinking of judging tort cases.As far as fault identification is concerned,qualitative analysis methods such as "predictability"and"evitability" and quantitative analysis methods such as Hand formula are introduced.The fourth part of the paper uses the above theory to analyze the typical case "Xu v.Peng Personal Damage Dispute" in order to strengthen the premise of responsibility transfer and encourage the parties to be responsible for their own actions.