On The Reasonable Application Of Fair Liability

In recent years,fair liability should has become one of the focuses to be improved in civil code,because it covers a wide range of applications and has a large social impact.Fair liability is based on the premise that neither party is at fault and requires the perpetrator to provide some compensation to the victim to share the loss.The purpose is to protect the interests of vulnerable victims and achieve relative fairness.Therefore,the system itself is adapted in accordance with China’s national conditions and traditional culture.However,in judicial practice,due to the particularity of the fair liability system,more and more courts regard it as a last resort,and the abuse,misuse is prevalent in practice,and even a moral crisis is triggered.In order for the fair liability system to exert its real value in judicial application,it is an inevitable trend to promote the reasonable application of fair liability.To clarify the basic concept of fair liability is the research background and arguments for the reasonable application of fair liability.This article clarifies the connotation of fair liability from two aspects of nature and characteristics,and further constructs a conceptual framework of fair liability by distinguishing between fair liability and fair principles.At the same time,from the perspective of the nature of private law and imputation system of tort law and the analysis of costs of accidents,the necessity of reasonable application of fair liability is analyzed in order to stimulate the inherent motivation of reasonable application of fair liability.Asking questions is a prerequisite for reasonable application of fair liability.This article uses empirical analysis methods,especially two research methods: big data and sampling analysis.Relying on China referee document net,the search was conducted with keywords of "fair liability" as the reason for adjudication,and cases that met the search criteria from 2009 to 2019 were statistically analyzed from the court level,region,year,and summary.At the same time,in the last three years,110 samples were randomly selected for analysis.The application status of fair liability is demonstrated from three dimensions: case type,constituent elements and consideration factors.Through data analysis,the status of abuse of applicable liability continues to deteriorate,as indicated by the expansion of the types of applicable cases,the decentralization of constituent elements,and the vagueness of consideration.Exploring the cause of the problem is a breakthrough in achieving reasonable application of fair liability.Only by investigating the causes of problems can we solve the problems in a targeted manner.This article analyzes the reasons for the problems in the application of fair liability from three perspectives: the lagging legislation of fair liability,the lack of judicial adjudication standards,and the slow development of the social relief system,and puts forward ideas for the reasonable application of fair liability.The theoretical justification is an important guide to the reasonable application of fair liability.The theory is the key to practice and guides the direction in which fair liability should be reasonably applicable.At present,there are academic disputes about the subject,scope of application,scope of compensation,and value orientation in the application of fair liability,which is the core internal cause of many problems in the application of fair liability.Through theoretical justification,this article clears the theoretical disputes in the application of fair liability one by one,improves the theoretical basis of reasonable application of fair liability and provides effective theoretical guidance for the reasonable application of fair liability.Path design is the "last mile" for the reasonable application of fair liability.Aiming at the current problems and reasons in the application of fair liability,based on the theoretical basis of reasonable application of fair liability,we will purposefully design the realization path of reasonable application of fair liability.First,put forward legislative suggestions.By amending the current legislative model which combines general provisions with typed regulations,the typed system of fair liability is improved,and the application of fair liability is strictly limited within the legal scope.Second,put forward judicial countermeasures.Second,put forward judicial countermeasures.By determining the constituent elements and considerations in the application of fair liability,the ambiguity and disorder in judicial application are to be reduced.Finally,construct a plural social relief system as a social supplementary relief approach.Through in-depth development of liability insurance and social security systems,it provides multiple options of relief,which shares relief pressure so as to excessive reliance on fair liability in the judicial application,and finally achieves the reasonable application of fair liability.