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On Victim's Faults In Contributory Negligence

Posted on:2019-08-07Degree:MasterType:Thesis
Country:ChinaCandidate:K ShaoFull Text:PDF
GTID:2416330596952292Subject:Civil and commercial law
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Contributory negligence refers to a civil law rule which requires judges to reduce or exempt the perpetrator's liability legally on condition that the occurrence or enlargement of damage can not be avoided simply due to the fault of the victim.This article only discusses this theme within the scope of tort law and,in our legislation this rule is mainly reflected in Tort Liability Law of PRC,Article 26.Contributory negligence is applied with the premise that there is an infringement act.It is generally believed that the components of this rule include the victim's misconduct,causation with the same damage and the victim's faults.But when it comes to the specific certification of victim's faults,some judges often misunderstood its conception,which further leads to the loss of the function and purpose of contributory negligence.Therefore,it is necessary to carefully sort out the system of the victim's faults,clarify its meaning and answer other related issues.From the perspective of consititution,victims' faults in tort law not only include the victim's negligence but also include the victim's deliberate or intentional actions.This article also further explores the applicability of the victim's liability without fault.From the perspective of interpretation,the victim's intention refers to a kind of subjective psychological state in which the victim knows that his behavior will cause some damage to himself but still does.The main issue lies in distinguishing this conception from Tort Liability Law of PRC,Article 27 which cuts off the illegality ofperpetrator's conducts and the causation with the damage.The victim's negligence is generally defined as the victim's failure to take reasonable care or preventative measures to protect his or her body,property and other interests,which leads to damage or expansion of it together with perpetrator's action.However,this explanation does not indicate the nature of the action,meanwhile there is a tendency to expand the scope of victim's negligence.In order to accurately explain the meaning of victim's negligence,this article focuses on the views of the highest judicial organs in our country,legislation and doctrine in major civil law countries and regions.The Supreme People's Court of our country contradictorily view victim's negligence as both a legal obligation and a mere "not paying attention".The same two tendencies appeared in the establishment and application of the Japan's rule of contributory negligence.On the contrary,Taiwan refuses to admit the victim's negligence as a legal obligation,meanwhile it considers that the victim's negligence is not merely "not paying attention" but "negligence to oneself".Despite there is an advance compared to the previous theories,but in fact,only this can not cover the full meaning of victim's faults.From author's point of view,the study of negligence can not be separated from the cognition of "illegality".The author mainly studies and discusses the research on the illegality in German law,demonstrating that illegality is an indispensable part of the constitution of tort and in the theory illegality mainly refers to the breach of obligation(duty of care).At the same time,the objectified concept of negligence makes the obligation breach also become the main content of negligence,and thus the integration of the concept of illegality and negligence appears.Under the circumstance that there is no separate illegitimate element in China's tort law,it is necessary to include illegality(obligation breach)in certifying someone's fault and to consider it as "should pay attention" in the conception of fault.With the support of the theory of illegality,this article further elaborates the German civil law's understanding of the victim's negligence.Based on the principle of equal treatment,the German civil law treats the victim's negligence as the same as the perpetrator's negligence,and solves the problem of whether the victim's negligence is illegitimate by using thetheory of " untrue obiligation".Untrue obligation and its legal effect is that although there is a requirement of law or agreement,but whether in accordance with the law and the agreement requirements or whether to avoid legal non-interest depends entirely on someone's self-selection,and therefore the result of the damage must be kept by him or her.The victim's negligence under this structural symmetry can be interpreted objectively as "breach of untrue obligations" and as the counterpart of breach of obligations(duty of care)on the perpetrator's side.At the same time,the connotation of behavior and security obligation can be injected into the victim's untrue obligation,which will be a powerful tool to define the scope of responsibility and accurately determine damages.Finally,we can eliminate contradictions in the view of China's Supreme People's Court or Japan's doctrine,and make up for the loopholes in the doctrine of Taiwan to achieve the basic purpose of contributory negligence.There are three theories on the part of the victim's standard of care:abstract negligence,modified abstract negligence and specific negligence.From the perspective of the equal treatment of German law and the change of the American law,the standard of reasonable man and good faith is the right choice for the judgement of victim's faults.Victim's risk responsibility is also based on the principle of equal treatment.Under the statutory circumstances in which the perpetrator has to bear the risk responsibility,the victim should also be treated the same.However,its application in the law of our country still needs further study.There are three theories about victim's capability: capability of civil liability,capability of recognition and no consideration on capability,which are closely linked with the second charpter's explanation of the victim's faults.From the perspective of the perpetrator's fault,the author believes that the elements of capability are indispensable in the judgment of fault.Therefore,according to the principle of equal treatment,the judgement of victim's faults should also have the capability elements.At the same time,the capability of recognition in fact does not have sufficient theoretical and practical significance,therefore,the victim's capability is necessary and in nature,it is capability of civil liability.There is a special problem in certification of victim's faults — under what circumstances can the negligence of a third party be classified as the negligence of the victim.Guardian negligence is the most important issue in practice,which is also an issue filled with controversy,the author picks it as an example to discuss.On this issue,there are three theories: conditional affirmations,complete affirmations and negative affirmations.The author believes that it's need to take a restrictive attitude to the guardian's negligence,and use the theory of several infringement and joint infringement to reconstruct the application of guardian's negligence.This is also consistent with the current judicial interpretation and judicial practice.
Keywords/Search Tags:Contributory Negligence, Violation of Obiligations, Capability of Civil Liability, Negligence of A Third Party
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