Research On The Use Of Balancing Of Interests In Tort Damage Distribution

Over the past decade, because of urbanization and high-speed mobility of social workers, cases of injuries caused by falling objects have occurred frequently throughout the country. For this same kind of cases, however, different courts have actually made different judgment results. Under the existing laws and modern tort theories, this kind of case should have a unified judicial result.Thus, I began to consider the relationship between tort theories and judicial practices. There are many deficiencies in existing tort theories:existing tort theories pay insufficient attention to the legislative purpose and social functions of tort law; existing tort theories cannot make up for the lagging behind of tort legislation; the understanding of existing tort theories of law and justice are too simple; existing tort theories cannot fully reveal the process of consideration of judges in judging cases; existing tort theories cannot realize their own pursuit of certainty and predictability.Current tort theory in tort damages distribution has many insufficiencies. In order to distribute tort damages with high-efficiency and to realize tort dispute cases quickly, it is necessary to introduce a new theory named balancing of interests. The theory of balancing of interests is a new legal theory and judicial methods that based on pragmatism and realism as its philosophical foundation, and use value relativism and skepticism as its standpoints. Its essence is value judgment that based on cases. The balancing of interests theory in tort damages distribution needs comprehensive considerations, including social needs, civil law values, procedures and other factors, and attaches particular importance to the needs of the parties in a case, by identifying conflicts of interests, making every possible solution, proving and forming the official conclusion, as far as possible to achieve a solution that every party involved in a tort case can accepts. Finally, I used the theory of balancing of interests to re-analysis the injury cases caused by falling objects, and pointed out that the results of such cases are actually achieved by this theory. Although there are many insufficiencies in the consciously using of this theory of courts at all levels, I suggest that we should support the using of this approach in the administration of justice. After all, it is a practice and innovation of a new way of justice.