On The Constituent Elements Of Equitable Liability

The value of fair liability in the protection and reasonable balance of the interests of the parties has received more and more attention in contemporary society.However,the provisions of fair liability in our country are too vague,and there are many concerns about its nature and application in the theoretical circle,so it inevitably reflects many contradictions and divergences in the judicial application.Under the background of the rapid development of science and technology and the rapid innovation of industrial structure in China,the emergence of a large number of new tort cases related to new technology and new industries has made the uniform application of fair liability a challenge that tort liability system research has to face.How to reduce the uncertainty of the application of fair liability as much as possible and reasonably determine the judgment criteria of constitutive elements of fair liability according to the particularity of the scope of application of the principle of fair liability are of great significance to the relative stability of judicial application and the maintenance of judicial authority,it will also be conducive to the perfection and unification of the tort liability system.At the same time,it can play a role of balancing interests and maintaining social harmony and stability in the context of the new era,and play a good rear role for the law in the process of national and social development.Chapter one,analyzing the predicament of current judicial practice.Firstly,introducing typical cases,investigating the problems reflected in the judgments of cases and putting forward some thoughts,then combing the relevant judicial judgments data in recent five years by empirical research,summarizing the high rate of revision of a judgement and the application of a "Jack of All Trades" type of fair liability in China's judicial practice,and finally,through in-depth analysis on the judicial practice of fair liability,summarizing the shortcomings of the unclear identification of the nature of fair liability and the lack of clear and unified applicable standards behind the problem of judicial practice.On the one hand,through the analysis of the current judicial dilemma,making the direction of the research in this paper explicit,on the other hand,it paves the way for the study of the theory of constitutive elements of fair liability in this paper.Chapter two,analyzing the nature of fair liability,clarifying the necessity of fair liability as a self-existent liability principle in tort liability system is the theory prerequisites for the study of the constitutional elements system of fair liability.Firstly,the obstacles and theoretical sources of the general legislation of fair liability are explained in detail from the structural design and legal logic of fair liability,and reflections on the key theoretical turning point of the study on the legal attribute of fair liability: no liability without fault,the universality principle contain theoretical defects.Furthermore,from the perspective of hermeneutics,the necessity of fair liability as a self-existent liability principle is comprehensively analyzed and explained.At the same time,it illustrates one by one the inappropriateness of three other theories: the theory of loss sharing rules,the debt theory of legal compensation obligation and the theory of liability without fault,and demonstrates the priority of fair liability theory in reverse.Chapter three analyses the positive elements in the constitutive elements of fair liability: the elements of causation's criterion for judgement.Firstly,this paper analyses the relationship between positive elements of fair liability and constitutive elements of general tort liability,and explores which elements of general tort liability are indispensable for fair liability,which elements are necessary for fair liability as aself-existent liability principle,leading to the consideration of criteria for judging the elements of causation.Then,detailed analysis of the causal elements as the only positive element in the constituent elements of fair liability,undertaking the most important function to support the legitimacy of fair liability imputation,What criteria should it adopt to support its artificial liability for non-fault actors? Finally,return to the case discussed in this paper,to judge whether the causal elements in the case are valid or not by the theory of equivalent causality,and to demonstrate the necessity of adopting the theory of equivalent causality in the judgment of causal elements in fair liability.Chapter four analyses the negative elements in the constitutive elements of fair liability: neither the perpetrator nor the victim is at fault's understanding and judgment.What does "no fault" mean here? Which aspect of the control of behavior and the prediction of infringement does not have fault? Or both? By comparing with the theory of judgment of the elements of fault in the responsibility for fault,this paper demonstrates what criterion should be adopted in the judgment of the elements of "no fault" in the fair liability.Finally,analyzing the relationship between no-fault and no-causation,discussing the possible ownership relationship between "no fault" and "no causation".