Study On Presumption Of Fault Liability

Traditional tort law focus on liability for fault,and fault presumption responsibility still takes fault as the basis of imputation and aims to punish the inflictors for their irrational behaviors.With the increasing of accidents in modern society,control of hazard sources has become the core subjects of modern tort law.A theory of transaction safety obligation had been established by the German court according to the precedents,and the idea of hazard controlling been introduced into fault liability.The initiators or controller of the hazard has the duty of to prevent the damage caused by the actual occurrence of the hazard.The basic principles of European tort law explicitly take the severity of the danger as the judgment standard of whether to apply the presumption of fault liability.Since the types of dangerous activities or dangerous objects cannot be enumerated exhaustive,it is inevitable that there will be omissions if the enumeration mode is adopted to stipulate the presumption of fault liability.Therefore,most of the open legislative mode is adopted in the comparative law to stipulate the presumption of fault liability,and judges are allowed to use such evidence rules as apparent proof or self-proof of fact as a supplement to the presumption of fault liability.Different from the general practices in the comparative law,for the fault presumption responsibility,China adopts the close-ended legislative model,that is,on the one hand,specified types of tort can be applied to fault presumption are enumerated and regulated,on the other hand,the application of Anscheinsbeweis in judicial interpretation be excluded by the legal reservation clauses.Then,how the rights and interests of the victims to be protected in cases when no specified types of fault presumption suitable to be applied,as unfortunately,there's no comprehensive regulations about the types of presumption of fault,especially in Liability for damage caused by the object.Moreover,rules of evidence such as Anscheinsbeweis are necessary supplement to the the fault presumption responsibility,and for comparative laws,there's practices without the fault presumption responsibility,but no any cases forbidden on Anscheinsbeweis.Therefore,in the judicial practices,the judges in china,who by falsely applying the presumption of fault in the name of fair responsibility,violated the principle of publicity of judge's mental impression,and misused the discretion.In view of all above,it is necessary to improve the constitution of the fault presumption responsibility in our country:in the aspect of legislative model,general practices and experiences in comparative law would be introduced for legislation,and in the aspect of theory interpretation,limitation and narrowing on the legal reservation clauses.