The Analysis On The Connotations And Application Of "Victim's Intention" Of Prc Tort Liability Law

The Tort Liability Law of PRC clearly rules “the victim's intention” as a type of exemption from the perpetrator's liability.However,there is little discussion about the meaning of the victim's intention by the practice and academic circles,which directly leads to the inconsistency in the applicable standards of law.In some cases,the victim disregarded the dangers and warnings,suffered damages at last.The perpetrator who had fulfilled his duty of care still had to bear the liability for compensation.Such kind of referee obviously violated fairness and justice.As an exemption of tort liability,what does the victim's intention mean —— direct intention or indirect intention? It is quite necessary to answer this question.The author believes that the victim's intention under the fault liability of the Tort Liability Law should only means direct intention;and the victim's intention under the no-fault liability(Articles 70-73,Article 78)includes direct intention and indirect intention.In addition,in judicial practice,the applicable scope of the victim's intention is limited,and it is difficult to cover all situations in which the perpetrator's responsibility should be exempted.The system of exemption based on the victim should be improved by reference to the suitable institution of foreign law,so as to better exert the function of the Tort Liability Law.Through the review of the legislative evolution,the author finds that the general attitude of the Chinese legislature to the victim's intentional exemption is conservative,which determines that conservative attitude should be exercised when interpreting the victim's intention in fault liability of the Tort Liability Law.Therefore,the victim's intention in fault liability means only direct intention.Studies in the field of causality also support the previous conclusions.When the actor is at fault,as an intervention factor,the victim's indirect intention has not reached the abnormal degree which can “cut off” the causal relationship between the actor and the damage.This is due to the limited rationality of human beings,which makes the victim's indirect intention more common in reality.If it exempts the actor's tort liability,the exemption of the actor's responsibility will violate the value orientation of protecting weak.On the other hand,in many cases,the perpetrator's fault is the “trigger” of the indirect intention of the victim.Therefore,based on the perspective of causality,the victim's intention in fault liability only refers to direct intention.The author's research in the field of law and economics also confirms the above conclusions.When the victim has direct intention to the damage,the gap berween the cost of avoiding damage of two parties is very huge,so the most effective way to avoid the damage is that victim bears the responsibility of the accident independently.In the case of the victim's indirect intention,the responsibility should be assigned according to the comparative negligence.The above conclusions are more clear when the research perspective rises to the height of the legal policy: When the perpetrator is at fault,only that the victim's direct intention exempts the perpetrator's responsibility is acceptable to the simple justice of the people.Under no-fault liability(Articles 70-73,Article 78),the risk-control theory,which is the basis of this liability,considers that the reasonableness of the actor's responsibility lies in its greater risk-control ability than the victim.When the victim has intention,the gap between the victim and the actor in the risk-control ability will be greatly offset or even reversed.At this point,the victim should be solely responsible for the damage.This conclusion is also in line with the optimal allocation of damage costs in law and economics.The dynamic system theory of tort law in Germany and Austria can also support the above viewpoint.According to the theory,the duty of care of the parties depends on various factors of the case.When the victim is deliberate about the occurrence of the damage,it does not only seriously violate the obligation to take good care of his or her own interests,but also predict the damage more accurately than the perpetrator,and,there is no doubt that the impaired rights are more important to the victim than to the perpetrator.As a result of the combination of the above factors,the victim's responsibility is strengthened to the extent of bearing the whole damage,thus enabling the non-faulted person to achieve exemption.After clarifying the meaning of the victim's intention,the author also researched the specific criteria for applying victim's indirect intention.By comparing the definitions and analyzing the cases,the author believes that in practice,the key difference between the victim's gross negligence and the indirect intention is whether it rejects the immediate dissuading behavior or crosses the “strong” blocking measures.In the case with the foregoing acts,the victim shall be deemed to have indirect intention;if the victim only ignored the warning sign/notice or broadcast notice,the victim shall only be deemed to have gross negligence.After completing the above research,the author also found that the victim's intention has obvious limitations in application.After looking at the relevant systems of foreign law,the author believes that the assumption of risk rule derived from the Anglo-American law can well compensate for this deficiency.Compared with the intention of the victim,the core difference of the assumption of risk rule is in the applicable situation.The author believes that the types of cases in which the assumption of risk rule can be applied are limited to sports activities such as sports competition and entertainment.In addition,regarding the influence of the party's civil capacity on the application of the assumption of risk rule,the author thinks that,in principle,the protection for the rights of persons with no(restricted)civil capacity should be given priority over the application of the assumption of risk rule;but if the victim is a person with limited civil capacity and can fully and correctly understand the nature and risks of the activity,the assumption of risk rule can also be applied.