On The Application Of The Contributory Negligence From A Tort Law Perspective

Contributory fault refers to the situation where,if the victim is at fault for the same damage or its expansion,the liability of the perpetrator is reduced or even exempted.In the field of tort law,the normative carrier of contributory fault is mainly Article 1173 of the Civil Code.In judicial practice,there are problems such as different understandings of the applicability of Article 1173,different determinations of fault,and inconsistent allocation of liability.Regarding the nature of Article 1173,there are two theories in China: comparative fault theory and theory of fault liability.Due to the fact that the positioning of the theory of fault liability generally corresponds to the adjustment of the wording and location of the relevant clauses,and is applicable to strict liability in line with changes in the expression of the relevant clauses of the theory of fault liability,and because Article 1173 does not have the special function of adjusting joint liability under the comparative fault theory,the theory of fault liability should be adopted to interpret Article 1173.On this basis,considering the special nature of China’s tort law,the application requirements of Article 1173 should follow the mirror principle,but the illegality requirement should no longer be considered separately,and the existence of liability should no longer be a prerequisite.In addition,the term "fault" in the text of the provision should be interpreted as referring to one’s own negligence,and only in exceptional circumstances can it be interpreted as negligence in the inherent sense,excluding intent.Moreover,since intentional conduct by the victim and self-assumed risk belong to the traditional scope of the theory of fault liability,and in the current separation model adopted in the Civil Code,the scope of adjustment between the three should also be distinguished.Regarding the determination of the victim’s fault,there are four theories:the theory of pure non-observance,the theory of equivalence,the theory of non-inherent negligence,and the theory of not truly violating obligations.However,these theories all have their shortcomings.The theory of pure non-observance and the theory of equivalence confuse the nature of the victim’s fault,and the theory of non-inherent negligence is difficult to explain the transfer of fault to third parties and has an overly abstract nature.The theory of not truly violating obligations also has its limitations.Therefore,the evaluation system of fault in theory of fault liability should be reshaped around foreseeability.Foreseeability does not equal subjective fault,and making foreseeability the core of fault evaluation does not mean betraying the mainstream objective fault evaluation system.On the contrary,foreseeability meets the needs of expanding the interpretation of fault in China,and as the core of the duty of care,foreseeability is easier to judge in conjunction with the facts of individual cases.On this basis,factors related to foreseeability in judicial practice can be classified into internal and external factors.For special factors that cannot be classified into the above categories,such as third-party fault,illegal behavior,and special physique,the policy basis behind the relevant factors needs to be analyzed and regulated accordingly.In terms of the selection of liability allocation basis in the application of fault liability,there are mainly three major theories in comprehensive jurisprudence and judicial practice: causation theory,degree of fault theory,and hybrid theory.However,the degree of fault theory and the hybrid theory have not addressed the problem of prioritization and weighting of different factors,and the proportionality between the degree of fault and the magnitude of the damage is difficult to quantify and correspond.Given that the basis for allocating damages is the joint cause of the victim’s behavior causing or expanding the damage,and fault indirectly participates in the allocation of liability by affecting the determination of causation,the causation theory should be adopted.Using causation as the main criterion helps to solve the problem of the application of fault liability in strict liability and the problem of applying it to guardianship cases.