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On the shaping of unreal joint and several liability and its extension in the application of strict liability

Author: WangZhu From: www.yourpaper.net Posted: 2010-06-24 13:27:35 Read:
Keywords: not really act jointly and severally liable objective joint tort law of strict liability
Abstract: the development of objective joint tort behavior theory leads to belong to accidental type of unreal joint and several liability shall be applicable to the case scope of joint and several liability, so unreal joint and several liability actually only applies to a special type of tort law.The unreal joint and several liability form has the legal characteristics and special value of the system.Comparison of strict liability in field of the existence of a large number of unreal joint and several liability provisions.Should be in strict liability of unreal joint and several liability to extend our tort law.
a, objective joint tort theory of unreal joint and several liability applicable scope of the
(a) the traditional civil law doesn't really type
the joint and several liability applicable scope
the traditional civil law the unreal joint and several liability, generally refers to the majority of violation of statutory obligations, the implementation of harm behavior on a victim, or different human behavior based on different behavior and cause the victim's right to damage, tort liability and the contents of each behavior the negative, the full liability arising out of acts, and one that all persons liable to eliminate the tort liability form.[1] this special research between a number of civil liability according to the law of the unreal joint and several relations, not including formed by employer liability or liability insurance special untruthful joint and several relations.A plurality of the tort liability of the unreal joint and several relations in different ways, according to its, can be divided into accidental type of unreal joint and legal type of unreal joint.The so-called legal type of unreal joint, index is responsible according to the law, is responsible for all damages of the victim, but one settlement that remove the other people responsible for the situation, the relationship between the field of product liability is defective product manufacturers and sellers of the most typical.The so-called accidental type of unreal joint, namely the unreal joint and several liability, because the relevant legal relationship caused by accidental coincidence, [2] causality includes three cases:
the first class: "concurrence causality", this is a kind of "concurrent causality", namely, a plurality of independent tort accident occur simultaneously and cause the same damage, and each act of tort is sufficient to cause the entire damage.[3] is a typical case of "pollution": A, B two factories at the same discharge, resulting in breeding a fish in the river died, separate A, B two discharge amount is sufficient to cause the entire damage.[4] generally, two tort without strict sense at the same time, it must be completed before damage occurs.[5]
class second, "the coexistence of causality", this is a "secondary causation," [6] is a cause of, another reason to cause damage.The traditional civil law scholars often example is two act as coincidence, such as B A and C will steal goods of the damage, B, C two of the A bear joint and several liability is not true; it may be two not as binding, such as A is the apartment manager, forget to lock the door when you have checked C's room, and B is the security company staff, have the obligation to check all the door but missed a C door, finally by D into C's room and caused damage to property.[7]
class third, "false causality" [8], two reasons have occurred, the first cause of damage, if not the first cause, damage will still be because second causes.This is a "first causality" [9], its essence is the single damage.Some two of a kind of tort, such as A, B two were negligent arson, two fires have burned houses may be C, but in B vertical fire spread to the house before C, A vertical fire has burned the house.[10] there are two non similar violations, if someone gave the dog poisoned, three days after the death, the other people will kill a dog situation; [11] or horse poison, another fire will kill the horse stables; [12] or a people from the building down, another in the fall the shooting death of.[13]
(two) by type of unreal joint and several liability defects of
it should be noted that the type of unreal joint and several liability, accident type, in the joint and several liability "is adopted to construct a theoretical framework for subjective" under the.Scholars from "objective" meaning of emphasis on differences in subjective joint liability and accidental type of unreal joint and several liability, such as Mr Shi Shangkuan, joint and several liability, purposeful, and no real joint debt has the same chance.[14] Sun Senyan professor of the theory development is not really single purpose and objective and joint and several liability subjective common objective difference, [15] Huang Li professor is distinguished from the angle of the joint and several liability and unreal joint debt: "joint and several liability, index of a debtor to a common purpose, with a debt payment, and the debtor to creditors, are all negative for all payment obligations for.But not real joint debt, index of a debtor, with a single purpose, the respective causes, negative its debt, and because of the performance of a debt, and the debtor shall destroy him also, the two are not the same."[16]
accidental type of unreal joint and several liability in practice, because of various claims occur alone, the right to request compensation for the damages of different rights, can only be "alternative" exercise.After the selection of a claim to achieve full, other claims to destroy.[17] has two problems: first, let the victim to choose one of exercising the right of claim, and selected the unreal joint and several liability may be because there is no compensation ability and lead to the victim can not repay, the consequence is that the victim cannot bear repayment risk.In special circumstances, such as two unreal joint liability for 10000 yuan compensation liability, and each has 5000 yuan compensation ability of innocent victims, because the design of the system, it can not request compensation respectively were two, highlighting the so-called don't really unreasonable joint.Second, may cause some harm people do not assume any liability.The early theory of civil law, such as professor Zheng Yubo think, no real joint debt without sharing parts, thus naturally without compensation relationship, otherwise they will face the dilemma of circulation.18] professor Wang Liming also think, not the main characteristics of joint and several liability there is no right of recourse, the purpose is not to make the victim get double compensation, and indulge in illegal behavior.[19] this result is the perpetrator between unfair, so recent scholars also have scholars for the sake of fairness, think of the unreal joint and several obligation of the debtor should also admit between right of claim.[20] but this further brought new difficulties in theory, that is how to determine the final share between the number of irrelevant, accidental concurrence of tort person.
(three) the objective joint tort behavior related to accidental type don't really absorb
the joint and several liability applicable scope
comparative law, the theory of joint act of tort civil law has been gradually from the "subjective" transition to the "common", the establishment of joint act of tort to "common" as the standard, i.e. the number of human behavior constitute the causes and conditions of the illegal act therefore, the same damage.[21] said that in the Taiwan region of China has been the formal adoption of, our country also has the authority of the scholars and suggestions should be used in the definition of the nature of joint torts feature.Behavior of [22] subjective relevance of joint tort, is on the development of traditional civil law "subjective", and objective joint tort, but the behavior of several people for the illegal infringement of rights, common cause in the objective for the damage of the victim.Generally speaking, the same damage combined with several common cause behavior, solid belong to the scope of this common behavior; every behaviour could also occur in the same damage, also includes the.The direct effect of development behavior of [23] objective joint tort theory is the joint and several liability scope expanded to the other legal system in regulating the types of cases, it is virtually to the delimitation of several tort liability in the field of.
; occasional type of unreal joint and several liability, is to avoid the victim to obtain the double claim based on the purpose, allowing only the victim "alternative" to exercise its right of civil law theory, the maintenance of system integrity, it is understandable.But when a large number of objective relation of joint act of tort has been harsh with joint and several liability, it is not necessary to it, also lacks the fair protection necessary for the victim, the offender between the lack of fair treatment.In fact, whether modern European countries or the United States tort law tort law of [24], [25], comparative law coincidence type is equivalent to our country civil law doesn't really apply joint liability joint and several liability cases almost without exception.The author thinks, should face up to and comply with the common objective of infringement behavior of expansion joint and several liability applicable scope trend, no longer retain the accidental type of poor equity unreal joint liability, the scope of infringement behavior common objective.System changes that bring, unreal joint and several liability applies only to the legal type, below also only in this sense, the use of "the unreal joint and several liability".
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