On The Limitation Of Judicial Application Of Fair Liability In Tort Law

Fair liability refers to the fact that both the victim and the actor have no fault in the occurrence of the damage,and no fault free liability is applicable.The people's court shall,according to the actual situation,order both parties to share the loss.In judicial practice,many judges do not prudently determine the fault of the parties,and often take the "no fault of the victim and the actor" in this article as the judgment basis,and apply the provisions of fair liability to order both parties to share the loss.This kind of act,which can be regarded as no fault and then apply the fair liability clause,blindly expands the scope of application of fair liability,It has seriously infringed the living space of fault liability system in tort law,violated the original intention of fair liability clause to reasonably regulate and prevent risks and compensate the victims,and failed to effectively balance the relationship between freedom of conduct and rights and interests relief.Therefore,under the condition that fair liability has become a system reality,it is necessary to reasonably limit its application,in order to provide for judicial practice Better guidance.Through the analysis of relevant cases,this paper finds that the judicial abuse of fair responsibility is reflected in the scope of applicable subject,the loose identification of behavior elements,the confusion of failure elements and consideration factors,which leads to the application of fair responsibility when it should not be applied.In view of these problems,this paper puts forward some concrete measures,such as restricting the constituent elements of application,limiting the types of cases applicable,considering factors at all levels,perfecting the relevant system and so on.