Contributory Negligence System In Tort Law

Contributory negligence refers to that the injurer’s liability for compensation can be correspondingly relieved or exempted when the victim contributes negligence in generation or expansion of damage.The aim is to avoid the unfairness brought about by all damages.Due to the imperfect of legal system of contributory negligence,there is a lot of controversy in the application of practice.This paper attempts to start from the theoretical basis,combined with the methods such as comparison law and legal hermeneutics,and discuss the existing problems about the components and applicable scope of contributory negligence,trying to clarify the application rules of comparison negligence in tort law.This paper explains the contributory negligence system in tort law from three parts:The first part is mainly to clarify the theoretical basis of contributory negligence,mainly including equity principle,honesty and credit principle and equality principle.In the specific application,we can analyse the rules of contributory negligence with more reifiable theory like Symmetry Theory,Risk Theory and so on.Comparing with Symmetry Theory,which excessively emphasizes on the objectivity of behavior,Symmetry Theory is more reasonable and more suitable to practice.The second part is mainly to explore the components of contributory negligence,the premise of contributory negligence is the behavior of the infringer must meet the requirements of the infringement.Then according to SymmetryTheory,we need study whether the behavior of the victim exists negligence,whether there is causality between the victim’s behavior and damage,whether the victim possess the contributory negligence ability under particular circumstances.The victim’s negligence means whether the victim behavior violates unreal obligation,which can be juedged by the standard of a rational person.Through the analysis of the legislation in our country,the forms of negligence incorporate intention and no intention,therefore there are two main forms of negligence involved in contributory negligence: one has intention and the other party has no intention,both sides have intention or no intention.Through the analysis,we can find that we need study the degree of negligence and the engagement of causation of both sides,regardless of subjective status of both sides.We also need consider the regulatory purpose to decide whether reduce or eliminate the responsibility of the infringer.There must be adequate causality between the the victim’s behavior of negligence and damage,and the damage is caused by the behaviors of infringer and victim based on the common causality.In addition,we need consider the subjective ability of the victim,if the victim is a minor or a mental patient,the theory of Reasonable Recognition is more applicable.The third part is mainly to explore the problems of contributory negligence in specific application.First of all,no-fault liability has some characteristics of social law,usually occurs in the highly dangerous work,mainly based on the consideration of fairness in individual cases.It can use insurance to share the damage,so contributory negligence usually no longer applicable,except in vicarious liability.Secondly,the provisions of law in China is different from those of other countries and regions.If the third party’s behavior of fault and infringer’s behavior constitute a common cause of damage,we can use the article 12 of Tort Liability Law to claim the third party and infringer to take shared liability,so there is no need to reduce the liability of the infringer by the application of contributory negligence.Baesides,for the problem of whether the special fitness victims infrigement can analogically apply the rules of contributory negligence,the key is to judge whether the victim should pay attention to his special fitness and whether it’s necessary to apply the rules of contributorynegligence by the consideration of causality,the type of special fitness,purpose of regulation and so on.The aaplications of contributory negligence in assumption of risk are different in different situations.Just in some special situations,the rules of contributory negligence can be directly,not analogically,applied to assumption of risk,when the considerations of negligence and causality of the victim’s behavior are also very important.