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Reserch On The Application Of Contributory Negligence

Posted on:2021-12-17Degree:MasterType:Thesis
Country:ChinaCandidate:X LiaoFull Text:PDF
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Contributory negliegence means that in the case of infringement,when the victim is also at fault for the occurrence or expansion of damage,the liability of the perpetrator can be reduced or exempted.This system originated from Roman law.Article 26 of China's Tort Liability Law stipulates the general principles of negligence offset application,but our country's laws do not provide detailed provisions for more cases of negligence offset application,resulting in many problems of negligence offset application.The summary of legislation and judicial practice,sort out the specific problems in the actual application of negligent offset,and propose corresponding solutions.In order to promote the further improvement of the system of negligence.Apart from the introduction,this article is divided into the following four parts:The first part is to summarize the problems of the application of negligence in the current stage through combing and empirical analysis of judicial cases.There are three main problems.From the perspective of the elements of negligence,there are certain controversies about the necessity of negligence.The main controversy focuses on whether the necessity of negligence of the victim needs to be applied as the necessity of negligence.In addition,when it comes to the judgment of the victim 's negligence,there is no clear standard for judging the victim 's negligence in practice,and there is a way to raise the degree of attention that the victim needs to fulfill when fulfilling his duty of attention to the same standard as the victim.So that the victim who is not at fault is deemed to be negligent and bears part of the responsibility.Finally,as far as the scope of application is concerned,whether fault-free liability can be applied to offset the fault,there is no unified conclusion between theory and judicial practice.And even if the application of no-fault liability is recognized,the specific restrictions on its application vary from case to case.The second part of this article combs through the integration of theories,and from the actual situation in China,demonstrates the necessity of negligent offset should be used as an applicable element of negligent offset,and also concludes that the essence of negligent offset is actually the ability of responsibility.It is clarified that the elements of our country 's fault-tolerance should be taken from the four elements.At the same time,the other three requirements were collated and explained.Among them,the judgment standards of negligence tolerance were explored,and it was concluded that the victim 's age and recognition ability should be combined as a method to determine whether a person has negligence tolerance.In the third part,the judgment standards of the victim's fault are sorted out.It is clarified that when judging the victim's fault,the same method of judging the perpetrator's fault should be adopted,and the method of making a reasonable person should be used for judgment.However,because the degree of danger caused by the fault of the victim is not as good as the victim,and to ensure that the victim can get adequate relief,this article believes that the reasonable person of the victim should pay less attention to their own safety than the victim.In addition,this article also discusses the standard of negligence when the victim is a special subject,and demonstrates that for a special physical victim,it does not need to increase the degree of attention to its own rights and interests to complete its obligation to protect its own safety.For those with limited capacity for civil conduct,the degree of attention to their own safety should be the same as that of ordinary peers,and they need not be the same as those with complete civil capacity.Finally,this article demonstrates the necessity of the application of fault-tolerance without fault from the connotation of fault-tolerance and the nature of fault-tolerance.And explored the restrictions in the specific application.The no-fault liability should be based on the negligence of the victim 's gross negligence when it is applied.This is in consideration of the purpose of establishing the no-fault liability and the protection of the rights of the victim by the tort liability law.Also for this purpose,when applying negligence,special care should be taken to protect the rights and interests of persons with incomplete civil capacity.
Keywords/Search Tags:Contributory Negligence, Fault Tolerance, Victim's Fault, Liability without Fault
PDF Full Text Request
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