On The Criteria For Determining The Instigation And Infringement Of Unspecified Objects

In most cases,instigation is accomplished in two steps,namely content production and dissemination.For specific objects of instigation,the instigator frequently performs these two steps independently.Where media are brought in,the content producer shall be able to instigate unspecified targets and act as the instigator together with the media.Existing theories of instigation are not directly applicable when instigating non-specific objects.In contrast to the conventional identification of the instigator' subjective intention of instigation,media in general do not have the intention of instigation,and their involvement further complicates the identification of causality.In view of this,a solution is proposed herein through analysis,i.e.,to adopt the objective fault theory and relax the identification criteria of factual causality.Moreover,after identifying the liability for tort that should be borne by the instigator,the liabilities of the content producer and media should be divided.In addition to the introduction and conclusion,this paper consists of four chapters.In Chapter 1,the subject of instigation to non-specific objects is studied.After putting forward the definition of non-specific objects,this is concluded by expounding the notion that the communication to non-specific objects belongs to mass communication in the theory of communication,followed by an exploration of the communication structure of instigation to non-specific objects.On account of the differences in the communication structure for specific and non-specific objects,the instigator to non-specific objects is determined to involve both content producers and communication media.In Chapter 2,which is the core of this paper,an analysis is carried out on the fault of instigators to non-specific objects.Conventionally,the instigator's behavior should be subjective and intentional,and this intent is to induce the instigated person's tortious intention rather than to cause harm.According to the author,the instigator as the proposed joint infringer should be held liable according to the law because he/she has a cause of attribution.Since existing research has adopted the flawed subjective fault theory in the analysis of instigators' subjective will,the objective fault theory is introduced in this chapter to provide a clearer standard of judgment.Based on the objective fault theory and the danger theory,the judgment criteria of instigators' fault are put forward,i.e.,the predictability of tort and the value judgment of instigation content.The predictability of tort means that the torts committed by the infringer should reflect the tortious intention contained in the content of instigation,which acts as a solicitation.The causal relationship between instigation and victimization is explored in Chapter 3.Due to the involvement of media,the dissemination of instigation content is partly subject to the selection psychology of instigated persons,who are in a sense choosing the content they want to receive and tend to be influenced by multiple instigation contents at the same time.Falling under the category of psychological causality in criminal law,the effect of human behavior on the will of others sometimes leads to failure of the "but for" rule.Still,this is suggested to first apply the "but for" rule before determining causality on the basis that the instigation substantially increases the likelihood that the instigated person will commit an act of harm.After providing a basis for judging whether the actor constitutes instigation in the above three chapters,Chapter 4 deals with the problem of liability sharing.Content producers and media,as a whole,divide the share of tort liability with infringer.Internally,content producers and media also need to make a secondary division of responsibility by applying a combination of fault and causative potency.