An Empirical Research On The Judicatory Application Of Equitable Liability

The equitable liability has caused a universal dispute in academia since its emergence,and some scholars argue that the equitable liability has brought enormous impact on the fault liability principle of traditional tort law.The enactment of the Tort Law of the People's Republic of China does not change the situation fundamentally except that the bone of contention of the equitable liability has undergone a change turn from the theory of legislation to the theory of explanation.The flexibility of equitable liability has led to the abusing and spreading in judicial practice.Faced with new infringements cases,how to regulate judicial application of equitable responsibility is the question theory and practice circle must answer.This paper,based on the above considerations,gives a deep discussion on those issues and tries to fill this gap thoroughly through empirical research.This paper is organized into five chapters.Chapter I collects 149 cases from latitudinal and longitudinal dimension and those cases will be categorized by different cause of actions.Case facts,the reason of judgement are also be given,which can be concluded that the abuse of equitable liability is exist in judicial practice.Chapter II,on the basis of charts and data provided by the first part,analyses deeply different forms of the abuse of equitable liability,which includes that the vagueness of equitable liability's application conditions;the fuzziness of equitable liability's consideration factor;the contradiction between different statutes.Chapter III,based the conclusions of the first two parts of empirical analysis,further analyzes the causes of abusing equitable liability.From the perspectives of normative jurisprudence,the vague of equitable liability and too much discretionary power should be responsible for the abuse of equitable liability.From the angle of sociology,unevenness professional qualities of judges;career risk;performance evaluation mechanism and guidance of public opinion exacerbate the abuse of equitable liability.Problems will be addressed in the last two chapters.Based on the results of researches and problems of judicial practice,chapter IV from the perspective of hermeneutics,concludes that the nature of equitable liability is loss sharing rule;The constitutive elements of equitable liability contains actual damage,proper causation;no-fault and the exclusions no-fault liability.In the last chapter,firstly,from systematic theoretical analysis and interpretation,“in accordance with legal provisions” of Article 1186 the Civil Code of the People's Republic of China refers to Paragraph 1 Article 1190 the Civil Code of the People's Republic of China.Secondly,the inherent drawbacks of equitable liability can be revealed by the legal position of tort law,value basis of law and the economics of law.In addition,Chinese social security system has been built,so this paper concludes that equitable liability has lost the value of existence and should retreat from the stage of history.