Equitable Liability Dynasty（公平责任王朝）

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1、 Equitable Liability DynastyTo write thesis net: Keywords: fair allocation of responsibility and justice measure elements applicable to cases Synopsis: The reason why the German legal systems draw on classical natural law school of thought and the creation of a fair liability system, fault liability

2、 as a general premise, so the lack of attribution capabilities exception responsibility. Its fair liability system formation history, theory basis and elements of measure, help to clarify our existing some vague understanding of the basic questions of equitable responsibility to make up for the loss

3、 of nature, in the broad-fair responsibility and limited fair responsibility between the proper choice, and to determine the real situation is a fair responsibility. Fair responsibility of Chinese and Western have, 1 and they are not without origin .1794 << >> Prussian general state law,

4、 open atmosphere of the first provisions of the Code of fair responsibility for the worlds first, Austria, Switzerland, Germany, in turn heel continues . dip irrigation by German legal systems of many other European countries also established a fair responsibility. << Soviet Civil Code >>

5、; 1922 (fair responsibility provisions of the second draft of the German Civil Code inherited << >> 752 mantle, the General Principles of the Civil Law of << >> 132 has also set up a fair liability system << Tort Liability Act did not make big changes to the >> ho

6、wever fair understanding of the responsibility for cases determination of all there is no lack of to be a point of clarification. corresponding conditions to examine the system of “Country of Origin” quite beneficially in this context, is the perfect Pi our fair liability system. A fair liability sy

7、stem to the German legal systems from the classical natural law school fair ideas The Equitable Liability thought of (a classical natural law school 1. Insights of three leading academics Where the legal system not act without thinking, everyone in some legal thought its pilot fair liability system

8、pilot is the classical natural law school fair thinking. 2 Grotius, Pufendorf, Thomas repair Sri Lanka such as per capita to explore the issue of tort law. Grotius (1583-1645 tort liability made general terms of style for the first time. pointed out the wrong line with the common interests of mankin

9、d or its special quality requirements do contrary to any wrongful act, whether as or omissions if such wrongful act caused the damage, according to the natural law obligations, and that compensation for the damage caused. 3 at the same time stressed that the fault is the responsibility of the premis

10、e, the grid Grotius also think that sometimes even if the offender is not at fault should compensate such cases, such as: The owner shall indemnify the damage caused by dangerous goods, 4 for the damages caused to others in emergency situations, such as fire when no other means to save their own hou

11、sing demolished neighbors houses, cut off the entangled vessels and for no others to ship his method to unlock the cable or fishermens nets, and the perpetrator should be compensated. 5 If the perpetrator is inevitable lack of awareness of important circumstances for non-negligence-based error while

12、 behavior is happenstance at play, which is engaged in the nature of the free will of Pufendorf (1632-1694 action, the course of events in its disposal, it is mandatory, under the command of coercion or binding of the action and its consequences imputed perpetrator should decree the responsibility o

13、f children and fools not true. imputation is not simply due to causal development set up, rather its judgment for the evaluation, that is, if the specific consequences caused by a persons understanding of the free will of its people that deal with the consequences. 6 addition, Pufendorf acknowledged

14、 that no-fault behavior of people in exceptional circumstances should be responsible. insights such as: the person who took the emergency compensation for the damage caused to the property of others is the principle of fairness (principle of out equity from requirements for slaves damage caused, thr

15、ough no fault of the owner, or compensation or slaves to the victims of natural justice (natural equity coordinated animal virulence, the owner, even if no-fault compensation or surrendered animals should. 7 due to its no the unfortunate event of the fault, the rich infringed the poor, generous requ

16、irements in line for some good deeds for the latter. 8 Thomasius (1655-1728 early insights the Pufendorf similar. 9 but << Tunxia damages v. Alberto Elijah Act mask >> (1703, usually referred to as << Acqui Elijah Act mask >> article, he abandoned the principle of fault and i

17、nstead advocated the establishment of the tort liability without fault for that the “right reason is not only advocate, as if out of a deliberate intent to do the same thing, fault, I should also compensate me caused damage, and also asked if the damage is caused, but apparently not by my fault but

18、caused by a pure event, should be compensated. “10 As to why compensation The establishment does not require the perpetrator fault Thomasius fair most fundamental reason. 11 In addition, self-punishment and compensation differences, subjective rights protection, the victim is not the exercise of the

19、 right to defense in favor of compensation angle argument. 12 It is noteworthy that Thomasius for the mentally ill, minors liable conducted interpretation. pointed out that the reason why the mentally ill and children should bear the primary responsibility for the mentally ill or not reached adult m

20、ental patients with minors own characteristics, therefore, should be themselves without adverse passed on the victim can be caused by mental illness or minor consequences, natural justice (aequitate naturali manifestation. Secondly, faced spirit patients or minors will be ongoing abuse can be preven

21、ted with the defense, because the former did not infringe the right. Similarly, the infringement occurred, you can request to be compensation for their property. Moreover, to make the mental patients minors relate only to the property without involving their personal responsibility. 13 2. Fair respo

22、nsibility of Germany and France, the similarities and differences Summarized concept Grotius, Pufendorf one hand, (as well as the early Thomasius advocates the establishment of the damages should be at fault for the premise, on the other hand also admitted in exceptional circumstances should also be

23、 responsible for no-fault. In order to prove the latter, Pufendorf rely heavily on natural justice. 14 mentioned exceptions, the state of emergency the next the Damage Inflicted time of virulence compensation, dangerous goods compensation, the owner of slaves or animals Damage Inflicted damage cast

24、subordinated obligation Later, the fair the responsibility of the German legal systems not related to: the state of emergency under the virulence of the compensation actually sacrifice responsibility (see this article fourth part discusses the compensation Caused by dangerous goods belong to the cat

25、egory of dangerous responsibility. the responsibility of the damage caused to the innocent owner of animals will also be dangerous responsibility (slaves for Damage responsibility exists room for long lost. 15 provided no fault of the rich Pufendorf said the poor should certain compensation can be d

26、escribed as a broad-fair responsibility Popular formulation. late Thomasius fair basis to abandon the principle of fault, the said in general is no longer with todays fair responsibility. however, natural justice as the main reason responsibility of the mentally ill minors argument for fair responsi

27、bility of Germany and France established quite instructive. infringed without defense thereafter can claim compensation for that reason and later also used by some commentators to justify no imputation ability responsibility. visible, although the insights of the three scholars fair responsibility a

28、nd later there are varying degrees of difference, but fair and responsibilities of various points in their respective doctrines have been involved: fault liability generally fair responsibility as an exception, mental patients, Caused by Minors may establish responsibility, its mainly based on natur

29、al justice, the disparities of the parties for the establishment of responsibility meaningful. (Two German legal systems of fair liability system << The Prussian general Pradesh method >> 1, Chapter 6, 41-44 (ALR I 6 41-44 to the fair responsibility onset regulations. Shall prevail, if y

30、ou suffer from a mental disorder, dementia, injury of children under seven years of age, only in its oversight the (Aufseher, receive compensation when the property of their parents, the victim can require compensation for the direct loss to the property of the perpetrators. 16 and such persons nega

31、tive responsibility to not be deprived of the necessary cost of living, and do not deprive the offender for the childrens fashion used to obtain their identity considerable education money is limited. 1 These provisions departure from the principle of fault liability “natural justice” ( natiirliche

32、Billigkeit under legis of the book and pointed out, No Imputation capacity by 18, “the launch of its behavior, therefore, the damage caused by its behavior by its property fair compensation. 19 For example, on the , even as the perpetrators of the childs property can easily provide compensation for

33、the damages caused by the minors, but also so that the innocent victims can not get any compensation, apparently harsh and moral conflict, and with the 41 - 44 provisions of such harsh resistance that are appropriate for parties to be eliminated. 20 on insanity, dementia is against, its reasoning is

34、 no different. follow < <Prussian general state law >> trail blazed Austrian Code of Civil Procedure, 1811 << >> 1310 (in conjunction with the 1308 fair liability provisions of insanity, dementia, and children, 1881 << Swiss Code of Obligation 58 also provides that no i

35、mputation ability fair responsibility. former is more comprehensive, whether the offender mentioned in 1310 (natural sense) fault, whether the victim is not taken for the protection of perpetrators defensive measures, the property status of the offender and the victim of three elements used to measu

36、re whether the responsibility established. latter quite Xi ink, only a simple one: “the sake of fairness, the judge may exceptionally decree cause damage some or all of the no imputation capabilities compensation. 21 Fair liability regime in Germany and France appear late but a greater impact, the c

37、reated process also twists and turns. Preparatory Commission (established in 1873) during the sorting and cataloging the draft law of obligations von Ktibel drafting No. 15, 8 (TE-OR Nr. 15 8 provides for children and in the lack of will of the decision to the others in the free state fair responsib

38、ility to the First Committee deleted on the grounds that such provisions improperly departed from the general principles of law (referring to the principle of fault), and practice of the common law does not fit. addition, the regulations allow the judge to pay attention to the urgent equitable consi

39、derations, but did not determine the referee norms help solve the problem. 22 the fair liability abandoned aroused a strong reaction from the establishment of the Second Committee (1890 decided to reintroduce and expand its scope to all no-fault and the virulence of the case, rather Caused by imputa

40、tion ability extent. Specifically, two grass 752, paragraph 2, fair responsibility imputation ability, paragraph 1, provides that: “intentionally or negligently does not hold in the 746 to 748 23 under the circumstances responsible for the damage it caused, in the case the circumstances in particula

41、r, within the limits required by the situation of the parties as fair compensation, and do not deprive maintain its adequate livelihood and fulfill their legal support obligation needs within the limits of the money, still should be compensation. “in the voting process, there have been a number of m

42、embers of such broad-fair responsibility to raise objections to the grounds, such as: a move to give up what has been achieved and to return to an earlier stage of development, the original concept, this way, to the fair grounds, the people that will be in this field, “in this area is no longer dete

43、rmine the legal concept, but somewhat volatile principles of morality and etiquette principles play a decisive role. 24 Opponents defeated in the vote, but influenced by, 1895 years, the federal Senate will be two grass 752, paragraph 1, delete paragraph 2, for three grass 813. 25 The following year

44、, the the three grass is submitted to the Imperial Parliament passed 813 for < <German Civil Code >> Section 829, which states: “has oversight obligations can not damage compensation is limited to 823 to 826 alleged cases in accordance with section 827 Article 828 is not responsible for

45、the damage it caused, within required limits according to circumstances, in particular the situation of the parties for compensation for the fair, and not deprived in order to maintain an adequate livelihood as well as to fulfill legal obligations required within the limits of the money, you still m

46、ust compensate damage. “At this point, lawmakers returned to the position on the draft of the von Kubel to the distance that is returned to the position of the ordinary state law. Second, the theoretical basis Classical Natural Law << Prussian general state law >> Code legis of natural j

47、ustice as responsibility according not dig, but points to the basis in this context, about the lack of attribution ability by 26 why the theoretical basis of the responsibility, the Department of German law scholars from different angles interpretation. (A) The theoretical basis of fair responsibili

48、ty Zhu said 27 1. Caused said << German Civil Code >> issued before and after, some scholars have proposed cause, (Verursachung said fair responsibility for doctrinal interpretation., Gierke, minors under the age of 12 in the Deutsche ancient Fools liability for damages to weaken German

49、Civil Code in the form of recent civil code. << >> 829 provisions no imputation ability responsibility, the law on which it is based only in the illegal act caused the damage. responsibility commitment fault has nothing to do, has been ruled out because no fault of attributable capacity

50、by the conceptual level, and can not agree to let the responsibility depends on the lack of the establishment of similar meanings fault there imputation ability. 28 2. Economic affordability said Fair liability system has been established, has been focused on the perspective of its economic power si

51、nce the parties to the status of the property, provide a description. Austrian scholars Unger, the early representatives in this direction. Unger believes that fair responsibility the true inner justify not based on subjective the ethical factors, but rather an objective social factors. allocation o

52、f the burden of damage the grounds that the parties to the status of the property. Neither the fault of the damage borne by the party according to the status of the property more affordable. Compensation depends on the economic affordability rich and poor area of ​​the law to a certain e

53、xtent, however, compatible with the development of the modern humanitarian humanitarian notion that the task of the state to try to help the economically weak, and in the field of private law, if it appears that can be tolerated and appropriate, also responsible for (richesse oblige the principles o

54、f wealth makes. 29 3. Specific fair to say Some commentators cling to the idea of ​​fairness, that the fair basis of liability that is fair. Hedemann the first to propose such insights his exposition is based refute Unger views that economic affordability responsible or said property mak

55、es thinking may be attractive, but it can not cover all the cases dealt with in accordance with the fair liability. the its some cases vitality from the third principle of equitable responsibility 30, and the other with a Fang Fuyu poverty and no relationship. example, according to << Austria

56、provisions of the Civil Code, the judge should consider “whether the victim out of the protection of the perpetrators has not taken defensive behavior. codification is at least conscious to the” status “of the parties, and not just “the status of the property as a foothold. 31 Since the economic aff

57、ordability of sweeping, the unique characteristics of fairness and responsibility lies fair. Although very flexible, it can complete the task, as the formula of good faith in contract law. From purely arbitrary derived prudent certainty needed to indicate the direction of the line is that the cases

58、compliance to reality, that is as specific modality (Groe specific situation., the third pillar of the modern law of damages should be described as specific principles of justice. 32 Hedemann after Schirmer, Leh,-nertz et al. adopt specific fair to say, but all did not elaborate. instance, Lehnertz

59、just never imputation ability does not infringe the rights of others, on the contrary, others enjoy not others against the right angle to the discourse. 33 4. Dangerous Responsibility The fair responsibility actually dangerous responsibility. Such insights of Larenz with Canaris of the representativ

60、e figure of two reasons: First, the mentally ill or minor and therefore without infringing capacity or only limit tort ability is on for the same reason others constitutes a special danger. In addition, a sudden loss of consciousness always a realistic objective, specific defects that sources of dan

61、ger in the sense 34. Secondly, it is involved in a range of 829 unfortunate damage allocation involved dangerous responsibility central task. 35 in the case of damage caused by sudden loss of consciousness to others involved clearly unfortunate distribution of damage on other occasions in the applic

62、ation of section 829, involved the same for the unfortunate damage allocation, because illegal but no-fault behavior in the sense of tort law is also deemed mere misfortune. 36 These four said today apart from causing said fewer people support the other three said their own advocates, 37 are hardly

63、any conclusion at all, it is suggested that the 829 system location has not yet been thoroughly clarified people to called “fair responsibility, but also can not explain what the problem. 38 (B rebuttal and Interpretation 1. Said economic endurance ills caused by dangerous responsibility Above all t

64、hat said, causing dangerous responsibility qualitative error of the disadvantages, and this both economic affordability that were lost in a one-sided history (such as the 12-table method, the traditional method used to exist in Germany rise to the liability (results responsibility), which is charact

65、erized by the establishment of responsibility the only causality (up plus on behavior with illegality, and its application is generally rather than the exception. fair responsibility, not a mere lack of attribution violations and damage of the ability, a causal relationship can be established between the economic situation of the parties, and behavior or parties related violations and other factors also play an important role in the establishment of responsibility. fair responsibility does not have general applicability, but the principle of fault for an exception to the