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On the constituent elements of a common risk behavior

Author: ZhangWei
Tutor: LiuShiGuo
School: Fudan University
Course: Legal
Keywords: Common risk behavior Attributable foundation Constituent elements
CLC: D923.8
Type: Master's thesis
Year: 2011
Downloads: 102
Quote: 0
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Abstract

In our daily life, based on more than behavior causing damage situation more and more. When the objective consequences of the damage occurred, the victim may not be able to prove who the real perpetrators, how to protect the rights of the victims?, The law system of common risk behavior in order to protect the interests of the victims, to address the victim's causal relationship proof problems. The so-called common risk behavior refers to dangerous behavior, and the consequences of the damage caused by two or more persons jointly implemented infringe on the rights of others who are unable to identify the real infringer infringement. According to the provisions of Article 10 of the Tort Liability Act, can not determine the specific infringer common risk behaviors jointly and severally liable. Law to the underlying causes of the common risk behaviors jointly and severally liable, imputation based on the theoretical premise is common for the basic category of the behavior of the system, is the study of the common risk behavior constituent elements. Imputation based on several theorists doctrine, or from the subjective aspect of the perpetrator, or from the objective aspects of behavior, or from a legal policy, or from the angle of a few who combine common risk behaviors imputation foundation to make a certain amount of interpretation, the theoretical value. But these doctrines are inadequate, unable to convincingly reveals the the Imputation basis of the common risk behavior. I believe that Scientists simply a theory is difficult to fully explain the basis for the imputation of the common risk behavior. Should benefit trade-offs \I believe that the interests of the trade-offs and the specific infringement unknown two different angles, from the presumption of protection of victims of value orientation and causation are two different aspects reveals the responsibility of the basis of the common risk behaviors, have greater rationality. The Imputation basis of the common risk behavior reveal the legal basis, and only with the responsibility of their classes at the basis of such responsibility to consideration of the question whether a person liable for the standard considerations is the constituent elements. Research constituent elements intended to theoretical research and services for the judicial practice, and therefore common risk behaviors constituent elements must be consistent with its essential characteristics and and accurate intuitive ease of judicial operations. To this end, this paper attempts by the type of the elements of traditional tort theory and combining with special elements and common risk behaviors and appropriate to draw constitute a crime in some of the four elements of the doctrine of criminal law, to reconstruct the common risk behaviors constituent elements system, to the constituent elements of a clear and reasonable interpretation of the common risk behaviors. The author believes that the constituent elements of the common risk behaviors should include the following: the main elements (there are two or more common risk behaviors and specific infringement can not be determined), behavioral elements (two or more persons jointly implemented, endanger personal and property safety risk behaviors), damage to the fact that elements of (damage to the fact that there is an objective of) a causal relationship between elements (risk behavior and damage presumed to exist between the facts of causality). The constituent elements of the common risk behaviors, specific infringement is unknown is the element of the core. It is not only a source of common risk behaviors Liability; distinguish common tort, meaning contacted but were jointly and severally liable to tort victimization unknown part of the important factors of violations. In addition, due to the specific infringer is unknown, it is a direct result of the legal risk behaviors and the damage to the presumption of a causal relationship between the fact and the law is ordered to the risk behaviors undertake serious disclaimer defenses that have to prove who is the specific infringer in order to free responsibility. Seen in the common risk behavior in specific infringer unknown is the element of the core. Test common risk behavior constitute elements of a reasonable standard is to look at the the behavior constituent elements whether obvious regional sub-similar behavior of some. The main core of the common risk behaviors (the specific infringement unknown) elements can be seen by comparing the analysis, conduct element (identity), a causal relationship between elements (presumed causality) distinguishable joint tort; common risk behavior of the main core elements contact the causal relationship between elements distinguishable no meaning but were jointly and severally liable to infringement; common risk behaviors of the main elements of behavioral elements, elements of causality distinguishable buildings to the detriment of the parabolic infringement. Visible, the author of the common risk behavior constitute elements of construction of the system is more reasonable. This four elements to construct a common risk behaviors constituent elements system, distinguishable joint tort, meaning contacted but were jointly and severally liable to tort buildings to the detriment of the parabolic infringement. In addition, the \In order to maintain the unity and harmony of the legal system, the Supreme People pay close attention to the introduction of a new judicial interpretation, consistent and Tort Liability Act \

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