Study On The Objective Imputation Of Infringing Behaviors

The German scholar Larenz first put forward the theory of objective imputation and he adopted dichotomy on imputation on the basis, namely negligence imputation and action imputation with the former referring to subjective imputation and the later referring to objective imputation. The theory was immediately adopted by German and European laws as one of the theoretical bases of the criminal laws. Most studies on the imputation of tort law in the private law field follow the traditional routes and focused on the substantial objective imputation. However, there are few theories that introduce the conception of"objective imputation"and discuss it further. Breaking the existing study method and combining existing researches, this article tries to further analyze the imputation of infringing behaviors by the dichotomy of subjective imputation and objective imputation.Chapter One mainly discusses the establishment and the historical status of objective imputation of infringing behaviors. The two super-ordinate concepts of subjective imputation and objective imputation are established on the basis of the traditional imputation principle of infringing behaviors. Taking"society orientation"for its basis,"subjective imputation"appears in the changes of modern social orders and relations, dealing with the changes of the subject from contract to identity in social activities, namely from"rational person"to"reasonable person."Starting with the historical source of the imputation theory of infringing behaviors, this article investigates objective imputation from ancient to modern society and demonstrates that the actor is sure to undertake the due responsibilities as long as his behavior results in certain loss or damage. The legal ideology of subjective imputation co-exists with that of objective imputation in modern society. However, objective imputation still fights against subjective imputation by its irreplaceable characteristics and shows wider space in further development trend. And,expounds the realistic background of objective imputation of infringing behaviors, believing that the change of social bases and the reformation of autonomy in private law are the roots of the appearance, formation and establishment of imputation theory. The change of social bases determines the change of the role of "person" in private law from rational person to realistic person, and further determines the change of idea bases of imputation theory of tort law from intentional tort to the co-existence of fault liability and danger liability.Chapter Two explains the theory of objective imputation of infringing behaviors in details. Firstly, this chapter clarifies the relationship between the imputation theory and infringing behaviors, pointing out that fault is no longer an almighty conception that is able to cover everything in tort law and that fault has its own limitations.Chapter Three explains the theory of objective imputation, holding that"danger"and"fault"are opposite and that they both can trigger infringing behaviors, and that behind various infringing behaviors in objective imputation field, there is the danger which is opposite to people's safe life and activities, and that to have danger as the logical core of objective imputation can meet the realistic and theoretical requirements. In the end, this chapter proves the non-ignorable relationship between objective fault liability and danger liability in objective imputation of infringing behaviors on the basis of danger control theory and danger sharing theory. The relationship between them determines the main content of the imputation theory of objective fault liability. Chapter Four describes in details the objective fault liability which focuses on the adjustment of common hazards. The basic theory of objective fault liability centers on common hazards. By investigating the handling method of common hazards in the typical countries of the two legal systems, it is believed there is obvious resemblance in them. The standard in judging objective fault liability should be danger control theory and reasonable person standard which is determined by the relationship between them, the nature and extent of the danger. The default of reasonable person is based on the feature of danger. And explains the danger liability that centers on high hazards, believing that the danger liability in modern tort law is the outcome of the industrial society in the tort law, and that it changes the system of tort law from the root, and that it becomes the landmark in distinguishing traditional tort law and modern tort law. Danger liability is not the liability for illegal behaviors and its fundamental thought is to distribute the unfortunate damage reasonably. The danger in"danger liability"is special and its basic cause comes from the business activities of enterprises. Therefore, the object of danger liability adjustment centers on the high hazards in the business activities of enterprises. Facing the threat from high hazards to social life, the typical countries of the two legal systems deal with it with different methods that receive same effects.Chapter Five based on the theoretical studies of objective imputation of infringing behaviors, adopts legal theoretical method to analyze its ideas of law. Firstly, the legal ideology of subjective imputation co-exists with that of objective imputation in modern society. However, objective imputation still fights against subjective imputation by its irreplaceable characteristics and shows wider space in further development trend. Secondly, as for the imputation issue of infringing behaviors, the determinants of their application force differences are the directness of justice correction and the indirectness of justice distribution. The application force of justice correction is the most powerful in subjective imputation field. The distributing function of justice correction is powerful enough to fairly realize the aim of liability distribution while the independent role of justice correction is not so powerful. In objective imputation field, the application force of justice correction decreases gradually and the application force of justice distribution increases gradually from object fault to danger liability because of the characteristics of two justice conceptions. An increasing mode comes into being from the development of imputation of infringing behaviors. Finally, because of the wide and further development of objective imputation of infringing behaviors, the value orientation of tort law has shown its diversification, and its main valuable freedom and security conflict with each other. Undoubtedly, in modern society, people's loudest appeal is security. The key problem of tort law is to promote the harmony and progress of freedom and security in the most reasonable way.Chapter Six analyzes the perspective attribution of an objective and a comment on " Tort Law of the People's Republic of China" in the form of the objective imputation, from the imputation system and from the inherent principle of the Principles of responsibility Legislation as the starting point, that " Tort Law of the People's Republic of China"attributable to a great extent in achieving the objective and changed the likelihood that people will govern the orientation behavior, reversing the traditional theory of tort understanding of imputation. Multiple imputation rules and general terms and provisions of the type of combination model, the " Tort Law of the People's Republic of China " in the protection of civil rights, sanctions violations, ensure social harmony and stability in the legal regulation play a major role, while that " Tort Law of the People's Republic of China" has a natural flaw in the theory, based on more specific types of violations cited, the lack of flexibility of interpretation of the provisions of the vitality it needs to be tested in the future course of development, is bound to continue to fill with the power of justice for its shortcomings.