Research On The Compensation For Infringement Of Special Physical Condition

According to the citation of the guiding case No.24 issued by the Supreme Court,it can be seen that the theory and practice of damages for special torts have not reached a social consensus,and are even controversial;the "eggshell head" theory,which was widely recognized in the past,is now unable to meet the needs of practical adjudication.The scholars have made a profound study on it and basically reached a common view,that is,the No.24 guiding case has its own specificity of application and cannot solve the problem of allocation of liability for damages in other special tort cases.The special physique itself is a personal physical state expression,and the essence of the special physique in the tort law is to compete with the tort to cause damage results.In the process of adjudication,many judges are confused by the definition of special physique,the fault of the parties,causation and other elements.The question of where the victim’s special physique is located in the law of tort liability,and whether it can be used as a factor in the establishment of liability and damage apportionment,needs to be analyzed and discussed in a typology,and scholars have not really solved this problem after discussing the theory of fault,the theory of equivalent causation,the theory of sending and degree,the theory of injury participation and the theory of equitable principles.This paper divides the special physical tort cases into three levels: first,the types that apply the 24 guiding cases;second,the types that have statutory exemptions;and third,the types that require a dynamic evaluation system as discussed in this paper.This paper hopes to establish a dynamic consideration system rather than a mechanical reference to deal with more complex practical facts,including the clarification of the position of special physique in tort compensation and how to determine the scope of compensation flexibly,with a view to giving some reference to judicial practice.Chapter 1 firstly categorizes the connotation of special body and clarifies the position of special body in the tort of special body and its role in the compensation relationship,and then introduces two types of special body tort and their basic connotation,including two types of competing and hypothetical causation tort.The third chapter introduces the evolution of the principles of adjudication of torts of special physique in Germany and Japan,Japan has moved from the principle of consideration of cause to the principle of disregard,while Germany has moved in the opposite direction,while learning from their merits;The fourth chapter proposes a set of dynamic consideration system involving multiple factors to deal with the ever-complex subjects and objective facts of modern society,including multiple factors such as subjective fault and the special degree of special physique.