On The Determination Of Fault In Liability In General Tort

With the development of human society,the incidence of infringement has become more frequent.As one of the constituent elements of a general tort cases,fault behavior plays an irreplaceable role in determining the liability for tort,which shows the important position of the principle of fault liability in tort law.There are two kinds of natures of fault itself,subjective and objective.It is generally considered that fault is a subjective state of mind.However,with the development of the theory of "objectiveness of fault",some scholars began to adopt an objective point of view on the nature of fault.This paper argues that such a view confuses the relationship between the nature of the fault itself and the standard of fault judgment."Objectiveness of fault"refers to the objectification of the standard of negligence.At present,the tort liability law of China has not defined the nature of fault and the standard of fault identification,which has brought a variety of problems to judicial practice,such as confusion in the identification of the nature of the concept of fault,and inconsistent judgment standards adopted in the identification of fault.In view of the above problems,combined with the comparative method,this paper believes that the subjectivity of fault itself should be clarified.Subjective criteria are adopted for the identification of intention,but objective criteria are adopted for the identification of negligence.At this time,illegality and fault are unified under the concept of duty of care,and whether the doer violates the duty of care is used to determine whether he has negligence.In the fault determination,it is necessary to make clear that the premise is the predictability of reasonable people,combine with the comprehensive judgment of relevant factors,and rationally draw lessons from the favorable rules of the two legal systems.This article is divided into four parts:The first part elaborates on the basic theory of fault in general tort liability.Firstly,it clarifies the core position of fault in general tort cases.Secondly,it discusses the different theories involved in the nature of fault.It is clear that the fault itself is still a subjective concept.Finally,two standards of fault determination are analyzed,namely subjective standard and objective standard.The second part is mainly a comparative study of the fault determination rules.Introducing the rules of fault determination in the typical national tort law of the civil law system and the common law system,including the provisions of fault nature and the standard of determination of fault,and summarizing the commonalities and differences between them.The third part mainly introduces the provisions on the fault determination of general tort liability in our country's legislation,as well as the empirical analysis of various problems in the judicial recognition practice in our country.The nature of fault and criterion of fault determination are not clear in our legislation.The fourth part mainly proposes suggestions on how to improve the fault identification rules from both the legislative and judicial aspects.The legislation clearly defines the subjective concept of fault.In the judicial practice,the determination of faults deliberately adheres to subjective standards,and the fault should adopt objective criteria,and the existence or non-existence of negligence is reversed through whether the behavior violates the duty of care.Emphasis is placed on the premise of the prejudice of ordinary reasonable people.