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The Dilemma And The Settlement Of Quantification Of The Hand Formula

Posted on:2019-02-08Degree:MasterType:Thesis
Country:ChinaCandidate:S Y WangFull Text:PDF
GTID:2416330596963471Subject:Law
Abstract/Summary:PDF Full Text Request
As for the traditional standard of negligence determination,the Civil Law System is the Kindhearted Father Criterion and the Common Law System is the Reasonable Person Criterion.The Hand Formula has been created as the development of Economic of Law.It provided there variables,namely burden of adequate precautions,probability and gravity of the resulting injury.We can draw a definite conclusion that whether the actor is negligent by comparing the burden of adequate precautions and the product of the last two variables.The traditional standard of negligence determination is blurred,abstract,and internalized while The Hand Formula is clear,specific,and externalized.So The Hand Formula is considered to be the evolution of the standard of negligence determination,but it is also very difficult to quantify.At this point,we had reached an impasse.In order to overcome the impasse,this paper will adopt the inter-disciplinary analysis method and introduce the Inter-subjectivity theory.According to the Inter-subjectivity theory,the traditional standard and the Hand Formula are unified in the continuum of subjective-objective.The traditional standard has a weaker objectivity rather than pure subjectivity;the Hand Formula has a stronger objectivity but not pure objectivity,so the difficulty in quantification is inevitable.In order to solve the dilemma,the Modified Hand Formula including four propositions could be proposed based on the assumption that the original Hand Formula would have a correct probability of N.As for the application of the Modified Hand Formula,cases of security obligations is the most typical ones.As for now,we still use the traditional standard of negligence determination to make judgments.This formula could effectively remove the sensibility of the existing judgments.In order to quantify each variables,we can rely on the court and the lawmakers to make rules or laws.
Keywords/Search Tags:standard of negligence determination, the Hand Formula, dilemma in quantification, inter-subjectivity, the Modified Hand Formula
PDF Full Text Request
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