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Disquisition on Joint Dangerous Actions

Author: WangYong
Tutor: XuZuo
School: Jilin University
Course: Legal
Keywords: Return the responsibility foundation joint liability Risk Common infringement behavior
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 82
Quote: 1
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Abstract


Common risk behaviors as a type of one of the major common violations, in particular, reflects the legal regulation, balance the interests of victims and perpetrators of a high degree of skill. In the face of common risk behaviors of civil law system in the common law and civil law countries in the different requirements of the common risk of liability on the basis of the act, elements, such as exemptions to what the position of understanding and grasp, it is especially important. At the same time, the practice of the occurrence of a large number of cases, the birth of a system for the correct understanding of the common risk behaviors conduct an urgent requirement. This article attempts to different legislation comparison, the person of common risk behaviors who acts in accordance with the joint and several liability as the basis for the detailed analysis of the elements of common risk behavior, to assume responsibility for internal and external relations, and exemptions to the current criticism of the legislation so that they are summed up in China’s legislation on the common risk behavior ought to be the attitude.The first part of this article discusses the connotation and liability basis of common risk behaviors. Common risk behavior, also known as "quasi-common violations" refers to two or more co-implementation of the rights of others against the risk, and have caused damage, but one can not identify who is the perpetrator. The system of civil law and common law as provided for in both. Common risk behavior as a one of the common types of violations, compare with the violations in general, it has the following characteristics: First, the implementation of the common risk of sexual activity should be the subject of the plural; Second, the implementation of a number of people with a common risk Behavior; Third, the consequences of the damage is not common to all human-induced risk behavior, but can not identify who is the real perpetrators; Fourth, a common risk behavior is the cause of damage.From the risk of a common commitment to civil liability for acts of the point of view, the legislation of the countries identified as a people to common risk behavior and several liability, jointly and severally liable for the profound theoretical basis for what. There are a lot of controversy, said co-perpetrator, subjective common fault that the interests of the trade-off that it would also arouse people (abusers) said that unknown to take part in some of the unknown that the risk that the doctrine and so on. Overall, all of the above theory, in varying degrees, at different levels specified in the laws of people to common risk behavior and several liability theory, it certainly has its positive significance. However, from a comparative point of view, "said unknown people stirred up" is a more comprehensive and thorough definition. The implementation of the perpetrator and the victim’s dangerous behavior can not proof, constituted the "unknown people stirred up" the core of the argument.The second part of this article discusses the elements of common risk behavior. In general and general tort, elements of common risk behavior are as follows: First, the plurality of the main part, it is the premise of common risk behavior; Second, the acts of the perpetrator are dangerous. The acts of the perpetrator are dangerous is the nature characteristics of the common risk behavior. As the name suggests, on the one hand, the acts must exist, on the other hand, the acts must be dangerous. The main reason of high parabolic behavior does not belong to the common risk behavior is for their lack of dangerous behavior. To knowledge the nature of such dangerous should take the following two aspects: On the one hand, the threat of it to be about to damage or injury or damage to individuals is protected by the Civil Code of the civil rights of others, the act itself is illegal; On the other hand, this is a real danger exists, or is not only a possibility, or probability. The acts of the perpetrator of the possibility of virulence from the act itself, the act took place when the surrounding as well as the perpetrator of the virulence of the possibility of an integrated control conditions to be judged. Third, the perpetrators can not be certainty. Compared with common violations, common risk behaviors arising from the results of the damage is not common to all people due to dangerous behavior, but all the actors of a certain person or a certain part of a separate human-induced behavior, that is to say, the results of the damage is not in fact taken place with all the actors in each of the acts have a causal relationship. Fourth, the relationship between cause and effect exist. Tort law of cause and effect relationship is the objective between main perpetrators of the act which has caused damage to the victim and the consequences of contact. The common risk behaviors of a causal relationship between the two is the election of a causal relationship, as demonstrated by several human behavior may have led to the occurrence of the results, but its virulence was only one person or a part of it. At the same time, common risk behaviors cause and effect for the presumption of a causal relationship. Presumption of a causal relationship, said of the view that the risk behavior of the common law presumption of cause and effect and not be taken for granted. Although the damage and the consequences of the acts were part of the risk will likely be a matter of fact there is no causal relationship, but in order to protect the legal rights and interests of innocent victims, from the perspective of responsibility and made a legal presumption. In order to protect the legitimate interests of the victim, taking into account the perpetrators of the fault, the law put together all the people of common risk behaviors as a whole, does not require the victim to the perpetrators carried out the exact discrimination, the court confirmed that the initiative is not exactly hurt, and the decision of all the common risk of harm to the human consequences of the act jointly and severally liable. This is essentially a legal fiction. Fifth, the fault of actual virulence people (and stirred). In the co-risk behavior, although the act of the perpetrator has caused damage to the consequences of the possibility of the occurrence, but the consequences of the damage is not caused by the common behavior of all people, the only system in which a person or a section of the act were due, co-perpetrator of the dangerous behavior on the actual perpetrators and non-divided into the actual perpetrators. The people of common risk of non-actors in the virulence, although their acts together created a dangerous condition, but not the actual virulence, the only danger in terms of the formation of a "fault", but it is not a basis for liability, so Not on the structure of the so-called tort law of negligence liability. As a result, only the fault of actual the virulence exist.The third part of this article discusses the common behavior is dangerous to assume the responsibility and exemptions. Common dangerous to assume the main responsibility for the conduct reflected in the behavior as a result of a common danger caused by the behavior of the victim who should bear the joint responsibility and common risk behavior between the dual responsibility of burden-sharing relationship. The external effects of acts, although the provisions of civil law countries with national law provisions are not the same. But almost all carry a joint responsibility of thinking. That is, the victim has the right to the perpetrator of common risk of any one or more of all requests for compensation or total loss, and any risk of a common human behavior have an obligation to the victims to take full responsibility for compensation. Each of the debtor’s creditors must unconditionally accept all the outstanding debt at the request are not allowed to own more than outstanding share of the amount of debt by refusing to carry out its excess debt. Whether all the perpetrators bear all the damage on the outcome of the civil liability, or part of the common commitment of all the perpetrators of the damage to civil liability, the victim has the right to request the full realization perpetrators must not revert to the whole or in part, made a similar request. Act on the results of the in-house, the main actors involved in the responsibilities are shared equally between the share, or a proportional share, as well as the responsibility of the acts of the perpetrator of the persons entitled to the remaining claims. With regard to the perpetrator of the principle of shared responsibility, shared equally between the presence of the main said that the degree of fault (a proportional share of the said) and said that the compromise (the average for the principle of sharing, except for a proportional share of), some perspective, we agree that the average share, as a result of acts of in the implementation of a common course of conduct, its potential to cause damage to the same probability, it is difficult to determine the degree of fault, so the division of responsibilities, the general should be taken to the average share of the method, each with an equal share of the damage results. To assume the obligations of the claims are entitled to claim certain other acts within the scope of the exercise of the right to claim, the claim should include not only the scope of the claims in excess of the share of people should take part, should also include the performance of debt as well as non-essential expenses claims by a separate person responsible for the losses caused by the subject. If the exercise of the right to claim encountered in the rest of the actors lose the ability to repay, based on the average share that the claims of the people who should be set up according to copies of a particular debt, not because of their ability to pay by the loss of other acts Outstanding person on his behalf or to waive its obligation to the community, once its ability to pay, that is, who should claim the right to repay their share. Claims to the occurrence of conduct should bear the share performance of the standard, when the acts were performed more than their share of share, will also be entitled to the other actors on the claims, as its share of the specific performance of more than Should bear a sub-quota for how much the ratio does not affect the exercise of its right to claim.The common danger of acts of exemption, specifically refers to the perpetrator of common risk of proof to prove through their actions and the damage did not cause and effect and the issue of exemption, that is, the perpetrator of the burden of defense point of view is that his negative behavior and damage results Cause and effect. As long as the danger of acts of people was proof he did not hurt that the possibility of another person, that is, to prove that they did not harm or damage to the conditions or reasons, the perpetrator can be exempt, even if the rest of the dangerous behavior of people still unable to determine Offender who can not defend acts of human exemption. The Supreme People’s Court of relevant judicial interpretations also said the meaning. It is worth noting that the common risk behavior, based on "equal to the release of a release of all" principle, if the victim made it clear that the deliberate act of a person from liability, should be considered to be common to all dangerous acts of people associated civil from the responsibility.The fourth parts of this paper taking our existing legislation more in-depth critical analysis, pointing out the shortcomings, and the corresponding legislative proposals. In 1986 promulgated the "General Principles of Civil Law" is not common risk behavior to make provisions, the Supreme People’s Court in 2003 issued a "personal damages hearing on the case law applicable to a number of issues of interpretation" of common Article 4 of dangerous behavior for the first time from the substantive law make a point of view of the provisions of this in our country in the true sense of common danger act established the system of compensation for the damage. However, during the application of the law, common risk behaviors from the first legislative system to deficiencies in the legislative provisions on the legal system or lack of defect, thus hindering the development and improvement of the system.For the current legislative status quo, in China’s civil code or common law tort legislation is dangerous to act should be fully considered or pay attention to the following questions: First, the provisions in the legislation, the common definition of dangerous behavior should be adopted "Fuzzy" definition of the way, so that better legislation to safeguard the stability of the abstract and leave some room for development in order to achieve timeliness. Second, the proposed legislation to clarify the nature characteristics of the common risk behavior--acts of the majority of the danger, so common and dangerous act "at high parabolic" strict distinction.Third, in common risk behavior, "co-fault" is not as common danger basis for the attribution of the act, "the common fault of the" dangerous acts as a common basis liability, it will create a common risk behavior theory and application of non-open Deviations. Finally, the problem of common risk behavior of defense should be both victim and perpetrator both the interests of the common danger from an act of the common nature of the exemption may be practical for the virulence as well as from the common risk behavior, such as the unity of the results Multi-factor, multi-angle, the legislation should be clear if the victims of the express from some of the common risk of civil liability of the perpetrator should be considered to be common to all acts of some people from several civil liability.

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