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The Research Of Special Physical Damage Compensation

Posted on:2020-08-24Degree:MasterType:Thesis
Country:ChinaCandidate:W Y ZhuFull Text:PDF
GTID:2416330602458108Subject:Science of Law
Abstract/Summary:PDF Full Text Request
With the aging of the population,cardiovascular and cerebrovascular diseases,cancer,patients with depression and "sub-health" populations,disputes over damages for special physique victims have been commonplace.When the special physique of the victim and the infringement are combined,the damage is caused or enlarged.At this point,there will be a dilemma for the actor to face the burden of personal injury compensation.If the actor is compensated for the total loss,it may be too harsh,but if it is only compensated for part of the loss,it seems to be unfair to the victim.This article has serious controversial issues about whether the infringer is compensated,how to take responsibility,and whether it can reduce the liability for damage caused by the damage caused by special physical intervention.In response to this problem,the paper is divided into four parts for discussion.The first part defines the special physique of the victim and points out the significance of the victim’s special physique in tort law.The second part explores and examines the application of various compensation rules in domestic and foreign legislations,jurisprudence and judicial practice.It systematically analyzes the two problems in the world today that combine the special physique of the victim with the infringement to cause or enlarge the damage.The big solution:the "egg-shell" rule and the "probability consideration" theory.The "egg-shell"rule is to reduce the liability of the injurer for the harmless person’s special constitution.The theory of "causal consideration" is to consider the special constitution of the victim and thus reduce the liability of the injurer.This section analyzes the two rules and its advantages and disadvantages,and proposes that the resolution of such problems should not be determined in a one-size-fits-all manner.The third part proposes to solve such problems,and it is inseparable from the discussion of the causal relationship between the victim’s special constitution and the damage results.By distinguishing the types of different causal relationships,different solutions are made for different types.They are:a common causal relationship(infringement of the right to health),a common causal relationship(infringement of the right to life),and a hypothetical causal relationship.For the first type,the factor of special physique is generally not considered,and the injurer fully compensates for the damage result.For the second type,it is necessary to consider the special physique and the injuring behavior to share the loss of the cause of the damage.For the third type,consider the impact of the victim’s special physique and discretion to reduce the liability of the perpetrator.The fourth part discusses whether the special physique constitutes a fault in tort law,and points out that the victim’s special constitution is not at fault,and should not raise the duty of attention of the special physique due to the special constitution of the victim.
Keywords/Search Tags:special constitutions, faultcausal, relationship, compensation for damages
PDF Full Text Request
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