| Article 26 of The Tort Liability Law in our country generally applies to the area where a single tortfeasor causes damages to the victim.However,it doesn’t answer the question how the comparative negligence rule should be applied under the circumstances of multiple tortfeasors.The application of the comparative negligence rule isn’t just directly based on the fault of the victim so as to decide the scope of the damages which the victim must bear.Only when comparing the fault of the multiple tortfeasors and the victim can the scope of liability be determined.From the perspective of comparative law,the way o f comparing the fault of the parties under the circumstances of multiple tortfeasors is as follows: Firstly,entire comparison,in this way,the fault of the tortfeasors is regarded as a whole to be compared with the fault of the victim.After reducing the portion which the victim must bear considering its fault,the multiple tortfeasors are supposed to be charged with joint liability concerning the remaining damages.The disadvantage of the entire comparison is that the tortfeasor whose fault is relatively slight has to bear the risk of insolvency of the other tortfeasors.Secondly,in order to solve the problem of the entire comparison,the modified comparative negligence rule is used in the action of multiple tortfeasors.And there exist three particular methods: according to unit rules,only when the level of the fault of the victim is below than or equal to the fault of all the tortfeasors can the victim claim for compensation;different from the unit rule,based on the Wisconsin rule,the victim can only acquire the compensation from the tortfeasors whose fault is greater than the victim;in accordance with the conditional joint liability,if the fault of the tortfeasor exceeds 50%,after deducting the part which the victim should bear,the victim can claim for the remaining damages from the tortfeasor,in the meantime the other tortfeasors whose fault is slighter just bear the damages in proportion to its own fault.Thirdly,individual comparasion,in this method,the tortfeasors and the victim all share the damages in their own fault.Fourthly,respective comparative negligence rule,by way of this way,when comparing the the fault of the tortfeasors and the victim,it should be compared with the tortfeasors respectively rather than integrally.Every time the fault is compared,it’s supposed that the damages are caused only by the compared party,all the tortfeasors are supposed to undertake joint liability within the scope of the minimum fault of the tortfeasors.Fifthly,the method of combining the entire comparison and respective comparative negligence rule,it is similar to the respective comparative negligence rule,the difference between which is that the compensation is limited within the scope of the damages.Sixthly,the insolvency risk reallocation method,when one of the tortfeasors get insolvent,the other tortfeasors and the victim ought to share the part in proportion to the respective fault.The respective comparative negligence rule and the modified comparative negligence rule can’t realize the compensation and deterrence purpose,thus making them impossible to be the alternatives.Under the circumstance of multiple tortfeasors,the traditional way of comparing the fault of the parties is consistent with the form of the liability.If the tort feasors should bear the joint liability,the entire comparison is adopted.While in the cases of several liability the individual comparison is applied.However,there are many types of tort when the joint liability is undertaken.The all kinds of way of comparing the fault of the parties allocate the insolvency risk differently and cause the different lawsuit cost.The differences between the kinds of the multiple tortfeasors are overlooked if the form of the liability is set as the standard to determine the way of comparing the fault of the parties.What’s more,the insolvency risk and the lawsuit can’t be reasonable shared in the traditional way.By way of the flexible system,the way of comparing the fault of the parties could be reconstructed.The type of the multiple tortfeasors is specified in the article from 8 to 12 of The Tort Liability Law.Nonetheless the consensus about how to classify the multiple tortfeasors isn’t reached in theory.Joint negligence emphasizes the same duty of care which the multiple tortfeasors owe.The fact that the multiple tortfeasors breach such duty constitutes the joint negligence.Thus the type of multiple tortfeasors in the case of joint negligence can be defined as the joint tort,which won’t destroy the system of the multiple tortfeasors.Now that the joint negligence is classified as the joint tort,as long as the tortfeasors owe the same duty of care,it also constitutes the joint tort if some of the tortfeasors are intentional while the others are negligent.Therefore the joint tort includes the joint intentional tort,joint negligent tort as well as the joint tort of combination of intention and negligence.Due to the fact that the tortfeasors are united together in the case of joint tort,from the logic perspective,the best way of comparing the fault of the parties is the entire comparison.However,because of the differences between the various joint tort type,the way of comparing the fault of the parties should be determined on the basis of the type of joint tort.When it comes to the joint intentional tort,considering the high culpability of the intentional tort,the comparative negligence rule is excluded.As for the joint negligent tort,on account of the close connection of the tort,the entire comparison should be applied.Nevertheless if some of the tortfeasors get insolvent,the insolvency risk reallocation method ought to be adopted.In terms of the joint tort of combination of intention and negligence,with the relationship between the tortfeasors and the victim,the comparative negligence rule isn’t applied.And when the negligent tortfeasors can’t recourse from the intentional tortfeasors,the insolvency risk real ocation is used.With respect to the alternative causation case,owing to the uncertainty of the causation and the weak correlation of the harmful conduct,the individual comparison is the best alternative.Besides,the identity overlap of the victim and the person conducting harmfully doesn’t hinder the application of the comparative negligence rule.With regard to the sufficient cause case,on the basis of the independence of the tort and the sufficient causation,the respective comparative negligence rule makes a sense.As to the case where all the tort meet the “but-for” causation test,considering the weak relation and causation,the individual comparison should be adopted. |
