Study On The System Of Fault Offset In Tort Law

Fault resistance originated from the "Ponzi rule",according to which no compensation can be obtained when the victim is at fault for the damage.With the continuous development of society,various countries have gradually realized that the "Ponzi rule" is too strict for victims,which can easily lead to perpetrators evading responsibility.Therefore,different countries have amended the "Ponzi Rule" according to their own national conditions,thus forming a degree of fault resistance.Negligence offsetting means that when the victim is at fault for the occurrence or expansion of the damage,the perpetrator’s liability can be reduced or exempted accordingly,the purpose of which is to fairly and equitably distribute the existing responsibility,so as to achieve justice in individual cases.However,due to the general and broad provisions on fault resistance in the current legislation,both in academia and judicial law,it has caused certain controversies,and there is no consensus on many specific issues in the application of fault resistance.The law does not give clear answers to the types of fault of the victim and the criteria for judgment,whether the victim needs to have the ability to offset fault to be able to apply fault offset,whether fault offsetting can be applied when a third party is at fault,how to apply it,and what factors judges need to consider in judicial practice to allocate existing responsibilities.Where the fault of the victim requires the application of the fault offset,a clear distinction should be made between the form of the fault of the victim,that is,between the victim’s intention and the victim’s fault,this is because different forms of the victim’s fault will have different legal consequences on the liability of the offender.The victim’s fault is a violation of the unreal obligation,so the requirement of the victim’s attention is lower than that of the perpetrator,but for the special physique person,in general,there is no difference between the judgment of fault and ordinary people,but under the condition of definite doctor’s advice,the special physique people need to have higher duty of care than ordinary people.The application of the system of negligent set-off requires the victim to have the ability of negligent set-off as well as the fault of the damage In the case of mental patients,the capacity of fault-offset does not exist during the period of their psychotic episode;the third person’s fault is applicable to the subjects of faultoffset,including the Guardian and the employee,in the case of the Guardian’s fault,there is scope for the application of the negligent set-off only if the guardian is at fault in the occurrence of the damage;where the employee is at fault,whether it is property damage or personal loss to the employer,fault set-off is applicable.When applying the principle of offset of fault to the distribution of liability between the parties,the judge should consider the degree of fault and the strength of reason comprehensively,but in order to maintain the uniformity of the rules of liability distribution in the field of tort,in view of the particularity of the strict liability field,the allocation of responsibility among the parties should be based on the principle that the degree of fault is subsidiary to the degree of cause.