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Research On The Construction Of The Proportional Liability In Tort Law

Posted on:2021-04-16Degree:MasterType:Thesis
Country:ChinaCandidate:S TongFull Text:PDF
GTID:2416330605472880Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
How to determine the scope of tort damage compensation?Theoretically,there is the opposition between full compensation and limited compensation.The doctrine of full compensation adheres to victim-centrism and takes the compensation of the victim's damage as the core,requiring the perpetrator to bear the liability for full compensation.In line with the tort law's pursuit of compensation function,the doctrine of full compensation has been established as the guiding theory of tort damage compensation.Therefore,in accordance with full compensation,once the tort liability is established,the perpetrator must bear the responsibility for compensating for all the damage if the damage exists.In a specific historical context,the doctrine full compensation has advantages that cannot be ignored in terms of relief for victims and maintenance of the stability of the law.However,with the development of the times,the facts of the cases are becoming complicated and the appropriateness of the application of this principle has been constantly questioned.On the one hand,there are many drawbacks to full compensation.Firstly,the implementation of full compensation pays too much attention to the protection of the rights and interests of the victims,which squeezes the perpetrators' freedom of behavior and creates an imbalance between the value of security and freedom of the law.Secondly,it fits the tort law's pursuit of compensation function,but cannot take into account the tort law's prevention and punishment functions;Thirdly,although it is called full compensation,it actually adopts many means to limit the scope of compensation,so there is a logical paradox of "partial compensation in the name of full compensation".Fourthly,the rigid mode of"full compensation or no compensation" makes the basis of liability have no effect on the scope of liability,which harms the substantive justice of the law.On the other hand,many countries have created a variety of paths to break through the doctrine of full compensation.Just as the maximum compensation limit,non-property damage compensation and discretionary reduction of damages all reflect the affirmation of legislation and justice to limit the scope of compensation,futher weakening the rationality of full compensation.All the above indicates that the value judgment of tort damage compensation no longer bears the victim-centered doctrine,and the protection of the interests of the perpetrators has also been paid attention to,while the full compensatory doctrine clearly cannot achieve the value balance goal of tort law.Under such a background,it is necessary to break the thinking model of full compensation and turn to limited compensation as the guiding ideology to limit the scope of the perpetrator 's liability.Therefore,the proportional liability arises at the historic moment.The proportional liability is the abandonment of full compensation.On the basis of affirming the degree of fault,illegality and causality,the judge conducts a comprehensive consideration and overall evaluation of these and determines a range of responsibility that is proportional to the sufficiency of the basis of responsibility.According to the proportional liability,the basis of liability and the effect of liability are no longer separated,which not only conforms to natural justice but also uses the judgement of judges to realize the substantive justice of the law and promote the balance of interests in tort law.In terms of concrete construction,this article adopts the methodology of"dynamic system theory" and elect fault,illegality and causality as the factors that affect the scope of liability.First of all,the degree of illegality is determined by the strength of interests,the strength of protection of the interests and the rank of value;Secondly,the degree of fault and the strength of ethical negative evaluation should show a positive relationship;Thirdly,determine the degree of causality based on the probability of damage caused by the act;In the end,the legal effect under the coordination of the three is recognized as a whole and the proportion of the ultimate responsibility of the perpetrator reflects the comprehensive weight of the factors.In this way,the factors not only affect the establishment of liability but also play a decisive role in the scope of liability,thereby forming a dynamic mechanism of the liability for tort damages.On the basis of maintaining the certainty of the law,the proportional liability can achieve the substantive justice of the law and become a powerful regulator of equity protection and freedom of behavior.
Keywords/Search Tags:Scope of Tort Damage Compensation, Full Compensation, Limited Compensation, Proportional Liability
PDF Full Text Request
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