An Analysis Of The Application Of Fair Liability In Judicial Practice

The discussion of fair liability is an enduring topic both in theory and practice.The theoretical community mainly discusses the nature of fair liability and tries to classify it as a certain category to provide a legitimate theoretical basis for its existence.The practice community mainly discusses the application of fair liability in judicial practice,all of which are committed to discovering the problems of fair liability in specific judicial application through judicial cases.The root cause of many problems in practice is that the general provisions of the law are too simple and difficult to operate in reality.Under the current legislative background discussed in the "Civil Code of the People's Republic of China<Infringement of Liability>"(hereinafter referred to as "Civil Code of Infringement of Liability"),it is necessary to improve this system through legislation.This article is mainly composed of four parts,the specific contents are as follows:The first part is the connotation and positioning of fair liability.First,it roughly sorts out the development context of fair liability,so as to define and explain its general terms.Second,it summarizes various theories on the nature of fair liability discussed by the academic community.The basic position recognizes that the existence of the principle of fair liability is reasonable,but ultimately positions it as a loss sharing rule,and finally shows that the application of fair liability has certain judicial practical value.The second part is the status quo of judicial application of fair liability.First,some effective cases are selected from the Chinese Judgment Document Network,so as to find that the general application of fair liability is suspected of expanded application.Second,it sorts out the specific provisions of fair liability in the current law.,And concluded that the categorized application of fair liability mainly includes five categories of arrogance,emergency hedging,complete civil capacity damage caused by people,buildings,falling objects caused damage and help workers suffered damage due to help workers.After that,the relationship between general terms and typification was justified.The third part mainly analyzes from actual cases and concludes that the application type of fair liability in judicial practice is far more than the five categories considered by the author,and the application type has expansion problems.And based on the ambiguity of its general terms,it is found that its application conditions are too simple and broad.After determining the applicable fair liability,there is no specific basis for the specific scope and amount of compensation of the victim,which is too arbitrary.The fourth part is based on the background of the "Civil Code <Infringement Liability>",and it is recommended to stipulate the application of fair liability in judicial practice through legislation,and clearly increase the number of traffic accident cases andcases of damage to service providers.This method can alleviate the contradiction between legislation and justice to a certain extent.In addition,it is recommended that the conditions for the application of fair liability should be clarified,and mental damage compensation should be excluded when determining the scope of loss sharing,and the economic status of both parties,the cause of the loss and the victim should be given priority when considering the proportion of loss sharing Factors of the severity of the loss.The analysis and discussion of judicial precedents can reflect the problems of legislation to a certain extent.Therefore,a typed analysis of judicial cases in reality also happens to reflect the shortcomings of legislation in this regard.Fair liability should conform to the development of the "Civil Code "Infringement Liability",and the relevant types of application to it should be restricted by legislation.This method can well prevent its abuse in judicial practice and can also provide its development direction.Certain guidelines.