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Imputation foundation of tort damages from the fate of the strict liability

Author: CaoFengGuo
Tutor: WangWeiGuo
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: Strict liability Attributable foundation Infringement Damages Tort Negligence liability Tort law Functional orientation Tort liabilities' Moral foundation Character
CLC: D913
Type: Master's thesis
Year: 2005
Downloads: 197
Quote: 4
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Abstract

The core of tort law is how to distribute the liability, but current study of the law of strict liability is extraordinarily unsatisfactory. This article discusses the criterion to which the liability is attributed and concern is devoted to exploring such questions: when traditional liability for fault begin to show defect facing development of modern industry, whether strict liability can act as foundation of distributing the tort liability in place of liability for fault. The author doesn’t contrast simply their element and feature of the two liability forms, but analyzes the strict liability from the value and inherent character of tort law and its function, and concludes that strict liability only applies temporarily and will disappear in future. Furthermore, this article also tries to establish new basis of tort liability in the theory. This article can be divided into six parts. The first part analyzes specific meaning of criterion of liability, describes and defines the concept of strict liability, and points out that strict liability is not specially used in common law, although strict liability has covertly been made to approximate our understanding of negligence. This lays the foundation for a comprehensive examination of strict liability. The second part is the premise of whole thesis. The author maintains liability principles should rely on function and nature of law. This part also links liability principles to value choice and function of tort law, and confirms that under such idea only negligence can contain essential factor such as “act”. Strict liability violates idea of tort law and is considered to be unreasonable and unfeasible. The third part focuses on the essence of strict liability from the perspective of underlining the moral and ethical foundation of tort law and considers that strict liability is unreasonable in tort law. In the forth part, writer inspects the attitude of developed countries and our country towards strict liability from practice, probes awkward situation of strict liability in tort law, and concludes that judges reject to apply strict liability in trying tort cases. In the fifth part, this article makes efforts to set up new foundation of liability and gives its own suggestions. Finally, the author concludes that criterion of liability in tort law should be objective liability for fault, which is the principal basis of tort liability.

Imputation foundation of tort damages from the fate of the strict liability

Abstract

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