Legislative Evolution And Judicial Application Of Equitable Sharing System

Article 132 of the "General Principles of the Civil Law of the People's Republic of China"(hereinafter referred to as "General Principles of Civil Law")adopted on April 12,1986 clearly stipulates equitable liability.After the promulgation and implementation of the Tort Liability Law of the People 's Republic of China(hereinafter referred to as the Tort Liability Law)on December 26,2009,according to the legislative statement of Article 24 of the Law,most scholars call it the “fair loss sharing rules” ",But some scholars continued the term" fair responsibility "during the" General Principles of Civil Law ".Since its birth,equitable liability has been the focus of research in the field of civil law,especially tort law scholars.Regarding its legal attributes,legislative positioning and judicial application,it has always been the focus of research in the theoretical community,and there is no final conclusion yet.Therefore,the abuse of equitable liability in judicial practice has not been effectively resolved.On August 27,2018,"Divisions of the Civil Code(Draft)" was first submitted to the Standing Committee of the 13 th National People's Congress for deliberation.Article 962 of the draft changes the "can be based on actual conditions" stipulated in Article 24 of the Tort Liability Law to "can be in accordance with the provisions of the law".On December 28,2019,the reviewed "Civil Code of the People's Republic of China(Draft)"(hereinafter referred to as "Draft of the Civil Code")will be released to the public.In order to limit the scope of application of equitable liability,Article 1186 of the draft deletes the word "may" from Article 962 of the original subparts of the draft "Can be in accordance with the provisions of the law" and changes it to "In accordance with the law".In order to accurately define the nature of fair liability and legislative positioning,and to distinguish it from previous theories,the article refers to the draft provision as a "equitable sharing system".The article believes that in order to effectively solve the problem of abuse and misuse of equitable liability,the above-mentioned legislative approach should not be adopted,but it should be regarded as a general provision of the fair sharing system by clearly specifying the elements of judicial composition.It also helps to accurately define the legislative positioning of the system.Regarding the legal attributes and legislative positioning of equitable liability,domestic scholars mainly have three opinions: affirmation,negation,and compromise.The article believes that the equitable sharing system is essentially different from tort liability.The equitable sharing system is a special damage compensation rule,which focuses on the sharing of losses and should not be regarded as the principle of liability.At the same time,according to the changes in the expression of Article 24 of the Tort Liability Law during the formulation of the aforementioned Civil Code,it was found that the legislature has adopted a legislative option to establish the equitable sharing system as a new legal debt.The equitable sharing system is essentially a statutory payment obligation,which is to stipulate the law to share the loss of the victim with the actor,and then make certain property payment.The article refers to it as "equitable shared debt".Article 132 of the General Rules of Civil Law establishes a equitable sharing system,and the judicial interpretation of the Supreme People's Court supplements and refines the application of the system.Article 24 of the Tort Liability Law amends equitable liability it as a fair loss sharing rule,emphasizing that the perpetrators share only loss rather than liability.However,the fair sharing of losses rules still have problems such as excessive discretion of judges and inconsistent judgment standards.There are still cases of abuse and misuse in judicial practice.The article uses the “elevator to discourage smoking sudden death case” in Zhengzhou City and the “sudden death case by riding a small yellow car” in Hangzhou to elicit research problems,and reveals that the equitable sharing system has been abused in judicial practice.The article is divided into four parts.The first part is an analysis of the issue of equitable liability,including the meaning of equitable liability,the origin of thoughts,pre-set functions and interpretation of traditional theoretical viewpoints,and puts forward the view that equitable liability is not the principle of liability.The second part analyzes the changes of the equitable liability system.On the one hand,the article sorts out the course of the domestic equitable sharing system,from Article 132 of the General Principles of Civil Law to Article 24 of the Tort Liability Law.The legislative evolution of the equitable sharing system,and then study the relevant legislative changes in the process of formulating the "Draft Civil Code".On the other hand,it conducts comparative law investigations,analyzes the legislative situation of the equitable sharing system in the civil law system and the Anglo-American law system,and compares the advantages and disadvantages to provide reference experience for the subsequent suggestions for improvement.The third part studies the theoretical basis of the equitable sharing system.The article discusses the rationality and legitimacy of the fair sharing system from three aspects: the concept of fairness and justice,the basis of legitimacy and the necessity analysis,and analyzes the legal attributes of the equitable sharing system.Think it should be a new statutory debt.The fourth part discusses the judicial application of the equitable sharing system.The article analyzes the current judicial status,application requirements,and the need to restrict the application,and finally puts forward suggestions for improving the equitable sharing system.