| This thesis mainly analyzes the relationship between article12 and paragraph 2 of article 37 of the tort law,from the perspective of the liability form of the manger in the case of the same consequence caused by the combination of road management defects and obstructing traffic behavior.There are four chapters in this thesis.The first chapter mainly analyses the dilemma of the choice of liability form in the case of damage caused by obstruction on public road.First of all,through the case study,it shows the differences of the results of judgment in the trial practice.Secondly,it analyzes liability form that can be undertaken by the road mangers.Relevant special laws and regulations did not specify the form of liability.There is no applicable basis for joint liability.In semantic interpretation,it conforms to the several liability and supplementary liability at the same time,which are in conflict with each other.The second chapter is to analyze the opposition of legal consequences of the several liability and supplementary liability.The road mangers only make up compensation for the part that the obstructionist can’t pay off within the scope of their fault and contribution.First of all,through the background of the design of the supplementary liability system,the principle of full compensation for the third party to bear external liability for all the damage results,and the comparative law of the supplementary liability system to explain the theoretical basis for the road mangers to enjoy the sequential interests.Secondly,it analyzes the factors of the responsibility scope,and explains the difficultness of the causation.Finally,it analyzes the risk of insolvency of the victim and the road mangers and the right of recourse.The risk of insolvency of the victim is basically the same in the several liability and supplementary liability.The third chapter is the analysis of the standards of the application of law between several liability and supplementary liability.First of all,the distinction of the forms of tort only exists in the judgment of the illegality and the factual causation.If tort of nonfeasance constitutes infringement,it should be evaluated equally as the act.The act is not the whole causation when it comes to the result of damage causing by the act and nonfeasance.Secondly,the distinction between cause and condition comes from the theory of inevitable causation.There is causation between the breach of security obligation and the result of damage.The theory of maybe causation may confuse the causation with its judgment criteria.The act of a third party alone is not enough to produce all the consequences of the damage,even if it is enough,there is room for several liability to be applied.In addition,a single act,which is enough to cause all the consequences of the damage,may undertake part of the internal liability.Then,intention and negligence are different in nature,and the attitude of the actor towards the result of damage is essentially different.The externalization of subjective will is whether to take preventive measures to prevent causing or expanding the result of damage.It is in line with the purpose of deterrence and prevention of infringement to make different evaluation of intent and negligence.The supplementary liability comes from the background that the third party intentionally and the safety-protection obligor negligently cause harm.In some states of America,the comparison between intention and negligence is refused.It is in line with the purpose of deterrence and prevention of infringement to make different evaluation of intent and negligence.By analogy article 26 and article 27 of tort law,the victim’s intentional exemption and the contributory negligence can be applied.Individual torts negligently cause harm conforming to the several liability.The third party intentionally causes harm,with the negligent safety-protection obligor,conforming to the supplementary liability.Moreover,it analyzes the responsibility form of the combination of other subjective states.The fourth chapter is the analysis of rationality and reflection for the exclusion of joint and several liability.First of all,the purpose of joint and several liability for similar cases in the analysis of comparative law is in order to reduce the risk of compensation and the procedural burden on victims.Secondly,by analyzing the reallocation of insolvency risks and the distribution of procedural burden,the rationality of China’s institutional structure to exclude joint and several liabilities can be analyzed.Finally,the essential difference of the liability form is the distribution of the risk of insolvency.The significance of the redistribution of the risk of insolvency can be imitate to guarantee fairness. |
