Research On Supplementary Liability For Tort

Articles 34,37,and 40 of the Chinese Tort Liability Law provide for "supplemental liability",which is a unique way of bearing responsibility in legislation.However,the specific rules of "supplemental liability" are not clear in the law,and judicial application is quite confusing.Many judicial rulings apply that "supplemental liability" actually means "per liability".The ambiguity of the rules raises questions about its legitimacy.Therefore,in the historical moment of codification of civil code,in-depth research on supplementary responsibilities should be conducted.This article first determines the specific rules of "supplementary responsibility" from the perspective of civil law hermeneutics,and then demonstrates its legitimacy,thereby clarifying the applicable rules of its entities and procedures.The research believes that the core characteristics of supplementary responsibility are the order of performance of the responsibility,the duality of the scope of responsibility,and the right of recovery of the person responsible for supplementation;the form of supplementary responsibility has legitimacy,which is reflected in the independence of technical orientation and the compliance of constituent elements;The determination of supplementary responsibility is based on the fault element,and its substantive rules can only be realized under the trial-execution second-order procedure structure.First,the specific rules of supplementary liability are: the person directly responsible(intentionally acting as a third party for infringement)bears all the responsibilities first,and when the person directly responsible cannot be found or cannot be fully compensated,the person responsible for supplementary liability(does not act as an obligor)The infringement)assumes the second-rank responsibility;the liability of the supplementary responsible person is subject to double restrictions: the limitation of the uncompensated scope of the direct responsible person,the fault,and the limitation of the cause;the supplementary responsible person can recover thedirect responsible person after taking responsibility.The infringement corresponding to the form of supplementary liability is "intentional act by a third party + inaction as an obligor" infringement,and this type of infringement should be explained by "co-infringement tort".Second,the form of supplementary liability has legitimacy in the theoretical system of tort law.The basis of the legitimacy of the supplementary responsibility lies in the independence in the technical sense,the conformity in the sense of the requirements,and the balance of the value judgment.Independence in the technical sense refers to supplementary and joint responsibilities.According to the share responsibility,there are different internal and external rules compared to joint responsibilities.Conformity in the sense of constitutive elements refers to the basic judgment of the torts corresponding to the supplementary liability,including the elements of conduct,damages,causality,and fault.Third,in judicial application,the key to judging whether a specific tort constitutes supplementary liability is to determine the elements of fault.Because the boundaries of obligations,the existence of causality,the scope of damage,and the judgment of the strength of the actor's fault have a high degree of overlap,it is neither necessary nor beneficial to conduct a comprehensive analysis of all the constituent elements in a lawsuit.In addition,in order to ensure the efficiency of resolving infringement liability disputes and balance the interests of victims,intentional infringers,and inactions,the second-order structure of trial and execution should be shaped,that is,combined trials are allowed at the trial stage to make conditional judgments;In the implementation stage,the direct responsibility is clearly defined,and the additional responsibility of the responsible person is subject to the enforcement of the property of the direct responsibility.The article structure is divided into two parts: ontology and applicability.Ontology includes the first part of the theory of interpretation and the second part of the legitimacy,which separately discusses the rules of supplementary liability and its justification basis;the applicability theory includes the thirdpart of the type theory and the last part of the procedural theory,respectively discusses the infringement corresponding to the form of supplementary liability The types of behaviors and the construction of related proof and litigation forms.