Zhang Lili

Introduction: The application of fair liability in judicial practice can well resolve some cases where one party is seriously harmed because neither party is at fault. However, the determining factors of loss sharing are not clear in practice. Some judges apply fair liability directly in the adjudication documents to distribute losses evenly, and even some judges include compensation for mental damage into the scope of loss sharing. By analyzing some cases in which fair liability is cited as a basis for adjudication in practice, it is clear that the scope of loss sharing for fair liability should exclude the compensation for mental damage. From the concept of fairness and fairness, a comprehensive consideration of the severity of the damage and the cause of the damage And the economic situation of both parties. From the perspective of protecting the interests of both parties, the losses suffered by both parties are minimized, and the interests are balanced to a certain extent.

Keywords: Mental damages;Fair responsibility;Loss sharing;Objective factors

1 Determine the scope of compensation

1.1 Exclude other remedies

Western countries have established sound social insurance systems in addition to tort law to deal with loss sharing in risk.[1] In general, when the interests of a party that has suffered losses are not effectively protected, a country's social security system and insurance system should play its due role. But when the two are relatively weak, fair responsibility has played a role in the social security system to a certain extent. Therefore, when a party who has suffered losses can obtain corresponding compensation through social relief, fair liability is not necessary here. At the same time, if the victim's loss has been partially compensated through the social insurance system, it should be deducted from the total loss sharing. Through this compensation system, the victim can be prevented from getting double compensation for one damage result, and the social moral risk can be reduced to a certain extent. Moreover, the social security system and insurance system itself bear the obligations of social relief organizations. If fair liability is given priority over the social security system, social relief organizations have no meaning and cannot play their due role.

1.2 Exclusion of moral damages

The main purpose of compensation for mental damage is to soothe the suffering of the victim and to punish the wrongdoer.[2] The right to claim for mental damages is a downward claim to the law of tort liability. In practice, fair liability is usually used as a loss sharing rule. The law stipulates that the damage result is caused on the premise that neither party is at fault, and the loss suffered by one party is based on fair liability to compensate as appropriate. In a sense, such compensation is only a partial compensation for the loss suffered. Its comforting part of the wounded mind. When the victim suffers a major loss due to the wrongdoer's fault, he should first pay compensation for his direct loss, and then consider whether the victim's mental aspect has suffered a major blow and needs compensation. If the perpetrators were not at fault, there would be no need for compensation in terms of the losses themselves, let alone discussing the spiritual losses. Therefore, compensation for mental damage should be excluded from the scope of fair liability loss sharing, and the party without fault should not be allowed to compensate the victim's mental loss.

In practical cases, the application of fair liability itself is to provide appropriate compensation to the victim. Why should the actor without fault be responsible for the loss? When the judge determines that the fair liability is applicable, the balance in his mind has the victim side tilted. Proceeding from the concept of fairness and justice, it does not necessarily mean that if it suffers losses, it must belong to the weak. The principles involved in fairness and justice are also reflected in the consideration of the actual conditions of different conditions. In this case, it should not be discussed whether the victim's side has suffered mental damage, let alone the loss should not be included in the act without fault. Within the scope of the loss that people need to share. Therefore, in order for this loss compensation rule to reach a relative balance between the interests of both the victim and the perpetrator, it must be clear that there is scope to compensate the victim's loss, and only the direct loss should be limited. Compensation excludes mental damage from the scope of compensation.

2 Comprehensive consideration of objective factors

2.1 The severity of the damage

The original intention of fair liability is to provide relief to victims who have severely affected their basic lives.[3] If the damage suffered by the victim side does not have a significant impact on himself, but only partially interferes with his life, and it can solve the problem of damage, fair liability will not be used here. However, if the victim suffers losses as a result, he cannot bear all the losses himself and cannot guarantee his basic living conditions, or if letting him bear all the losses will result in obvious unfairness and imbalance of rights and obligations, the judge should consider the case appropriately. Fair liability applies, and the losses of the victim are reasonably distributed, so that both parties can minimize the losses as much as possible.

2.2 Cause of loss

Through the analysis of cases in practice, it is found that there are various types of cases where fair liability is used as the basis for adjudication, and the reasons for the loss of one party are numerous. A brief summary of the causes of the losses can be roughly divided into the following categories: losses are caused by one party, losses are caused by foreign objects, it is impossible to determine the owner or user of the object, and the losses are caused by both parties. If there is a common cause, there is a beneficiary, and the victim needs to be appropriately compensated.

For the case where the loss was caused by one party, the parties should not be liable for the consequences of the damage because neither party is at fault. Has a causal effect on the damage caused,[4] In practice, the effect of such causal forces on the consequences of damage should be objectively analyzed. The behavior of the actor is not required to fully comply with the legal requirements. As long as the actor's improper behavior has a significant impact on the occurrence of the damage result, the cause of the damage result should be considered objectively when sharing the loss. For the loss caused by foreign objects, the space for applying fair liability lies in that the source of the foreign objects cannot be identified, but as far as the foreign objects themselves are concerned, there is a direct causal relationship between the foreign objects and the victim's damage results. Such cases to be considered for any reason force foreign objects losses directly caused by the victim, where the need to explicitly exclude force majeure reasons force composed of foreign objects, including but not limited to other accidents and other causes of force, usually. This will cause more serious damage to the victim. The law provides that the potential user will compensate the victim in addition to proving that he is not the infringer. In cases where there is a beneficiary, the result of the loss is usually caused to protect the interests of one of the parties. The cause of such damage is generally the misconduct of the actor or the reasonable act of the beneficiary for emergency avoidance. The victim suffered a loss for no reason, but did not have the corresponding ability to bear the loss. When the beneficiary appropriately shared the loss, the force acting on the behavior was an important factor that required qualitative analysis as appropriate.

2.3 Economic situation on both sides

The social effect of fair liability is to reasonably distribute the losses suffered by the victims between the two parties, but for a party without fault, such compensation is an additional property burden. The damage level of the victim cannot be taken as the starting point of loss sharing, and the economic situation of both parties should be taken as a priority condition for considering loss sharing. Taiwan scholar Mr. Shi Shangkuan pointed out that the court's first consideration should be the economic situation of the parties.[5] The author also agrees with this view. Only when economic strength allows, can we consider sharing the losses of the victims; otherwise, if the basic living conditions of the perpetrator cannot be guaranteed, why share the losses.

Although compensation is provided to the victim side, the economic situation of both parties should be taken into consideration. Here again, the concept of fairness is involved. If only one party bears all losses, no matter which party bears it, it is against fair value. In judicial practice, there is no case to support this approach. In summary, when judging judicial fairness in determining the application of fair liability, the judge should give priority to the economic conditions of both parties, and then combine other objective factors to measure the benefits. Determine how to share the losses.

Reference

[1] [US] James A. Henderson Jr. American Tort Law: Substances and Procedures[M]. Translated by Wang Zhu, Peking University Press:Beijing,2014:603.

[2] Wang Liming.Research on Tort Liability Law.Volume [M].Renmin University of China Press:Beijing,2010:701.

[3] Chen Ke. Judicial Application of General Clauses of Fair Responsibility—Analysis Samples of 100 Infringement Judgments [J].Applicable Law.2015(1).11-16.

[4] Song Ping.Research on the Application of Reason Force Theory [D].Huaqiao University.2019:15-17.

[5] Shi Shangkuan.General Introduction to Debt Law [M].China University of Political Science and Law Press:beijing,2000:186.