Research On The Judicial Application Of The Equitable Loss-sharing Rule

Before the civil code was not promulgated,the rules of fair share of losses were mainly stipulated in the Article 24 of tort liability law.Due to the vagueness of the clauses in the article,there are no clear scopes and conditions for application,and judges are given large discretion,which makes the rule of fair share of loss become the sole clause in judicial practice.Therefore,it is necessary to combine the provisions of article 1186 in the civil code to limit the application of the fair share of loss rules in order to realize the value of distribution justice.This paper is divided into the following four parts:The first part is the theoretical basis of the fair share loss rules.Firstly,the author sorted out the definition of the rules of fair sharing of losses by different scholars,and the relationship between the fair sharing loss rules and the fair principles,fault liability principles and no fault liability principles.Secondly,the legal attribute of the controversial fair share loss rule in academic circles is combed,and the principle of fair share loss is not the principle of imputation through the analysis of interpretative theory,which lays a theoretical foundation for the later research.Finally,the author sorted out the legislative changes of the rules of fair share of losses in China.The second part is the empirical study of the judicial application of the rule of equitable loss sharing.Through empirical investigation,the paper summarizes 187 judgments and analyzes the following problems in the judicial application of the rule of equitable loss sharing: the identification scope of "actor" is too wide,the judgment standard of "the occurrence of damage" is too loose,the abuse of the norm of "no fault",the fuzziness of "loss sharing by both parties",and the unlimited types of applicable cases.The third part is the substantive rules of fair loss sharing.Firstly,the applicable conditions of the rule of fair loss sharing are clarified,which can be include that the occurrence of serious consequences of damage,the causal relationship between the act and the occurrence of damage,and the subjective no fault between the victim and the actor.Second,it is clear that the rule of equitable loss sharing must be applied in accordance with the law,and the situation stipulated by the law is summarized.The fourth part is the judicial application of fair loss sharing rules.Combined with the existing problems in the empirical study,some suggestions are put forward to further clarify the scope of loss sharing,the consideration factors of the loss sharing ratio,and improve the relevant matching measures.