On The Constitutional Requirements And Exemptions Of Common Dangerous Behaviors In Our Country

Since the promulgation of tort liability law,joint dangerous act has been a hot topic in the civil law field.Based on the statistics of the cases of joint dangerous act published on the Internet of China's judicial documents,it is found that the existence of the same situation may not necessarily be recognized as joint dangerous act;there are great problems in the understanding of the specific categories of joint dangerous act;the theory of law fails to guide the practice well;in the objective elements of the tort liability of joint dangerous act,each court has a common understanding of the act.The same-sex problems are not judged by the same criteria.Through further analysis of these judgments,it is found that the main reason is that there are differences in the composition of common dangerous act and the reasons for exemption,which shows that there are unreasonable points in the system design of common dangerous act.In the joint dangerous act,to balance the interests of the actor,the infringer and the infringed,we need to have a clear ruling standard,which can accurately identify the joint dangerous act and its exemption.The constitution of joint dangerous act mainly includes four aspects: subjective,objective,subject and object.At present,the most controversial and direct impact on the identification of joint dangerous act is subjective and objective.In the objective aspect,the joint dangerous behavior has the characteristics of danger and commonality,causes the actual damage result and the perpetrator is unknown,and there is a presumed causal relationship.In the subjective aspect,there are fault liability and no fault liability,and the joint dangerous act should be a single fault under fault liability.As a system that directly affects the ultimate responsibility,exemption has the greatest impact on the parties.At present,there are mainly two theories in the academic circle: affirmative and negative.Among them,affirmative theory is a more appropriate theory,which is to allow counter evidence to overturn the presumption rule,to be conducive to the balance of interests of both parties,to conform to the basic legal theory,and to the distribution rule of the burden of proof.Therefore,as long as the actor can prove If there is no causal relationship between their actions and damages,they should not bear tort liability.By combing the mainstream theories and combining the advanced experience of all countries in the world,the author hopes to clarify the reasons for the identification and exemption of the common dangerous actor theoretically,so as to give full play to the legislative value of the common dangerous act system.