| Although the Civil Code of the People’s Republic of China has amended equitable liability,limiting its application to the scope of "provisions of the law",indicating the legislator’s determination to limit the application of equitable liability and unify the scale of adjudication.However,it is undeniable that the application of equitable liability is still subject to many controversies in theory and practice.From theoretical issues such as the nature of equitable liability,the meaning of "law" and the specific application of the provisions of the circumstances,to the wrong application in the field of contract in practice,all need to be further clarified and regulated.In view of the need to further improve the application of equitable liability,this article,after sorting out and analyzing the relevant cases on the application of equitable liability before and after the implementation of the Civil Code of the People’s Republic of China,concludes that the focus of controversy on the application of equitable liability in practice is mainly whether the constitutive elements of equitable liability are met,whether it is a statutory application of equitable liability and how the scope of loss and the proportion of contribution should be determined,and focuses on The three focal points are analysed in legal terms,and conclusions and insights are drawn from the relevant case studies.The body of this article is divided into three parts.Firstly,based on the comparison and analysis of typical cases and overall judicial cases,the focus of controversy is summarised and the conclusion that the current types of application and adjudication of equitable liability have not changed much compared to the previous ones and are not well restricted by the corresponding amendments.Secondly,on the premise that the essence of equitable liability is statutory compensation and has a basis of justification,the elements of equitable liability are analysed,specifically including the existence of conduct and the corresponding perpetrator,the existence of damage results and huge losses,both parties are not at fault,and the existence of a legal causal relationship;at the same time,the statutory application of equitable liability is clarified from both academic controversy and the current situation in practice.Strictly speaking,only Article 1190(1)of the Civil Code of the People’s Republic of China fully conforms to the characteristics and constitutive elements of equitable liability,and the eight types of situations in which equitable liability is mainly applied in current practice lack relevant legal basis;and analyzing the scope of loss and the proportion of contribution,we obtain that the compensation for moral damage does not belong to the scope of loss,and that all parties should be comprehensively examined when determining the proportion of contribution.The conclusion was that all objective factors should be examined in determining the proportion of contribution.Lastly,in view of the focus of the issue,we propose to strictly examine the constitutive elements of equitable liability,clarify the specific provisions of equitable liability under the law,and clarify the scope of loss and the proportion of contribution in order to improve the situation,and at the same time,consider strengthening the judges’ reasoning and avoiding the word "equitable liability(principle)" in the judgment documents in order to assist,with a view to To limit the application of equitable liability and remove the existing logical dilemma. |
