Study On The Liability Of Tort In Joint Dangerous Act

Joint dangerous act is a key manifestation of multi-person tort. The author makes a systematic study on this issue by consulting and referring to various theories, legislations and precedents from home and abroad.In the beginning, the author defines the joint dangerous act, regards this act as a quasi tort act, i.e. a dangerous act implemented by several persons likely to infringe the rights & interests of other parties, and real damage is arisen while real tort-feasor is uncertain. After conscientious comparison on related definitions and characters, the author thinks that joint dangerous act is obviously different from other tortious conducts as its domain of regulation is particular.In the light of four constitutive requirements of traditional tort liability, the author expounds the essential constitutive requirements of joint dangerous act. Meanwhile, the author makes an empirical and comparative analysis to main disputes on constitutive requirements, thus brings forward her own idea, i.e. on the premise of application of fault liability, the actors of joint hazard are obligatory provided with subjective fault which originates the dangerous condition, owing to either joint intent or joint negligence, either contributory intent or contributory negligence. As for the damage in particular, all actors are constructed with joint negligence. In respect of the constitutive requirements, the solidarity of joint dangerous act refers to the mutuality of hazard, the conduct of any actor is contributed to infringe the rights and interests of other person(s), ending up with the real damage at a given course & occasion, owing to either same time, or same place, or uninterrupted duration, or adjoining place. The dangerous condition has been engendered before the real damage come into being, and uncertainty of the tort-feasor is one of the most obvious features of joint dangerous act in terms of way of act.The objects infringed by joint dangerous act are relatively extensive, all civil rights & interests listed in the second clause of the Law of Tort Liability of the People's Republic of China are within the regulatory domain of joint dangerous act. As for the causality, with regard to alternative causality or accumulative causality, we think the joint dangerous act does embody but not confined to alternative causality, nevertheless not embody accumulative causality; with regard to inevitable causality or putative causality, the author is inclined to the latter because it's of more reasonable foundation than the former.In order to find the theoretical ground of tort liability of joint dangerous actors, we need to make a deep study on foundation of liability adscription. Generally, the non-tortfeasor won't bear any tort liability until following qualifications satisfied:in the sense of liability basis of tort law, the non-tortfeasor participates the dangerous act; in the sense of objective facts, the conducts of joint dangerous actors are of objective relevancy; in the sense of procedural law, the non-tortfeasor liable for damage helps to reveal facts; in the sense of value orientation of tort law, the non-tortfeasor liable for damage is favorable in protecting the victim. The doctrine of dangerous condition clarifies the ground for adscription of joint & several liability. The principle of liability adscription is the legal norms for liability determination, telling us how to determine liability accurately corresponding to various factual state. In addition to the general tort domain traditionally, the joint dangerous act also can be found in the special tort domain, so both the principle of fault liability and non-fault liability are applicable for joint dangerous act thereupon.Anyway, the joint dangerous actors are obliged to abide by joint & several liability, either in Romano-Germanic families or Anglo-American families. With the promulgation of the Law of Tort Liability of the People's Republic of China, the principle of joint & several liability related to joint dangerous act has been determined in overall. With regard to internal delimitation of liability among joint dangerous actors, the author agrees to following practice, i.e. with even assumption as principle and uneven assumption as exception, entitles the compensator who has assumed more quota than his/her contribution to the damage with the right of reimbursement internally. Concerning the excuse of exemption of joint dangerous act, academic disputes center on whether the joint dangerous actor may exempt his/her liability by proving his/her conduct has no causality with the damage, accordingly two kind of prevalent standpoints, the doctrine of positivism and negativism, are formed. The author agrees to the negativism, as the joint dangerous actor is not adequate for exemption of liability while proving his/her conduct has no causality with the damage, only if he/she clarifies actual assailant.