| Fault is the only subjective element of tort liability,which plays an important role in limiting liability.At the same time,because the civil code infringement editor clearly put forward that fault includes intentional and negligent two situations.Therefore,it is necessary to construct a clear fault judgment standard in theory and distinguish it from intention.As a form of fault,fault is the moral foundation that makes the damage not stay in the original place but can be transferred to the perpetrator.There is a subjective and objective dispute in the theoretical circle about the attribute of fault.The former thinks that negligence should contain subjective moral censure,while the latter thinks that negligence is to breach of legal obligation or duty of attention.In the theoretical system of our country,fault should obviously be a subjective concept,and its essence is based on the unreasonable obligation of attention in the psychological state that can be impugned to fail to foresee the damage,or to avoid the damage because of credulity on the premise of anticipating the damage.It can be seen that the core of fault judgmequivalent ent is the definition of duty of attention and the test of predictability of damage.On the criterion of fault judgment,there is also a dispute between subjective theory and objective theory.The former advocates that fault responsibility must be based on the possibility of compliance with the obligation of attention.Based on the actor's attention ability,this paper seeks to explain the fault imputation from the ethical impudability of the actor's subjective psychology.The latter constructs the general reasonable person,and takes its attention ability as the basis to judge the fault.Although there is a subjective and objective dispute over the judgment standard of negligence,in the final analysis,the judgment of negligence can only be objective,that is,the subjective will or psychology of human beings can only be examined through externalized behavior and facts.The difference between subjective and objective is concrete and abstract.The judgment standard of fault in traditional theory has experienced the change from concrete to abstract,and the value driving behind it is to protect the interests of victims more fully:the standard of rational person "an undoubtedly save the cost of proof.And make the nature of the defect can also be responsible for the damage.However,the construction of traditional rational human standards will rely too much on the psychological mechanism of judges and fall into another extreme of victim-centeredism.In addition,there are some misunderstandings in the traditional theory on the relationship between the duty of attention and the predictability of damage.Misreading in theory naturally leads to defects in judicial practice.The proliferation of victim-centeredism leads to the strange phase of "who litigates who is right ",and the ambiguity of the definition of the duty of attention leads to the wanton determination of responsibility.The author believes that the content of the obligation of attention depends on the degree of risk of behavior,not the degree of damage p redictability.After the initial construction of attention obligation according to the rules of social behavior,we can judge whether the amount of attention that the actor has invested has reached the optimal state through the marginal improved Hande formula,and increase the rationality of the examination of attention obligation.Broaden the new:difficult cases in the referee ideas.The choice of fault judgme nt standard should be strictly distinguished from proof standard.Abstract rational man is a typical personality,so this standard should only be used as fault proof standard rather than judgment standard.In fact,it is not difficult to depict specific personality in the data age.When there is evidence that the actor's ability to pay attention to special factors or foresee is obviously higher or lower than that of ordinary people,the judge should rely on his actual ability... |
PDF Full Text Request