Study On The Heterogeneity Of Commercial Tort And Civil Tort

Commercial tort is an interdisciplinary subject which arises and becomes more and more important with the development and prosperity of commerce.At present,there is no in-depth study on the liability of commercial tort in our country,let alone the construction of the liability system of commercial tort.Commercial infringement originates from commercial behavior and contains the special value pursuit of commercial affairs.The legislative system of the unity of civil and commercial affairs neglects the difference between commercial tort and tort,and the current tort liability law still stays in the traditional civil law thinking,constructs with the natural person law as the core,attaches great importance to the commercial law,and causes the lack of the commercial tort system,which is difficult to conform to the requirements of modern commercial economic and social development.Therefore,it is necessary to make an in-depth study of commercial infringement,analyze the differences between commercial tort and civil tort,and realize the separation of commercial infringement and civil tort.Commercial infringement should be an act of infringement of the rights and interests of others in the course of commercial business activities.For it,it should not only protect the interests of the infringer,but also shoulder the purpose of promoting economic development.Commercial infringement is limited in terms of tort subject and tort compared with civil tort.Based on the special value protection of commercial affairs,the heterogeneity of commercial tort and civil tort is mainly embodied in three levels:First,the heterogeneity of commercial tort and the principle of imputation of civil tort.The principle of imputation of civil tort forms a system that restricts the use of fault liability principle and the principle of no-fault liability.The principle of no-fault liability in commercial tort is more widely applied and tends to general status.Objective criteria are applied to the determination of fault liability.At the same time,the fair liability in civil tort shows the characteristics of not applicable in commercial infringement.Second,the heterogeneity of the determination of causality between commercial tort and civil tort.Causality is one of the constituent elements of tort liability,and the determination of causality in civil tort adopts "conditional theory" and "considerable causality".However,because the complexity of commercial environment makes commercial tort should apply the theory of presumption of causation.Third,commercial infringement and civil tort liability bear heterogeneity.Civil tort is often its own responsibility,bear alone.The way of tort liability is both the way of property responsibility and the way of personal responsibility.However,because of the characteristics of the organization and profit of commercial affairs,the substitution liability is mainly applied in commercial tort,and the joint and several liability and supplementary liability are widely applicable,and the compensation mode of commercial tort liability is only manifested as economic form compensation,which does not include personal compensation.In view of the heterogeneity of commercial tort and tort in various aspects,in practice,commercial tort has its necessity of independent existence.To realize the distinction between commercial tort and civil tort and to construct an independent commercial tort system,it is not appropriate to use the form of legislation to create the law of commercial tort liability,and it is more appropriate to adopt the method of legal interpretation to shape the current tort legal system and strengthen the protection of commercial affairs.At the same time,in the judicial practice to cultivate commercial tort thinking,to achieve the precision of tort cases differentiation.Play the role of tort liability Law on the adjustment of commercial relations,to avoid the current application of civil tort theory to solve commercial infringement cases in the predicament of interest imbalance,but also conducive to the promotion of business innovation and development.