Research On Joint Dangerous Act

The issue of joint dangerous act was brought forth because of the expansion of the scope of people's activities. The space between people become narrower and narrower gradually, so they are more likely to be hurt by others, but sometimes it is difficult to determine who the real defendant is, due to conditional and technical limitation. The system of joint dangerous act can undoubtedly be regarded as a new fangle in Torts with a history of more than several thousand years, because it has a history of no more than one hundred years since it was created by"Civil Code of Germany"issued in 1900. Germany, Japan and Taiwan all stipulated joint dangerous act in their Civil Codes, but China didn't do so in"General Rules of Civil law". Therefore, the relevant theoretical research and legislation of various countries is not ripe. Because of our deficiency of civil legislation, the academic circile has a great deal of difference on the constitutive requirements and the civil liability of joint dangerous act, undermining the unity of justice directly. In this paper, efforts have been made to do a systematic research on the joint dangerous act, and put forward the author's opinion on this issue concerning the basis of legislation and theories. This dissertation adopts historical research, interest weigh, comparative analysis and practical analysis methods to systematically research on the joint dangerous act, especially on its constitutive requirements and civil liability. At the same time some theoretical disputes will be discussed deeply, which is to perfect our country's theory of joint dangerous act, and to play a role in the legislation of joint dangerous act and formulation of"Civil Code". Besides the introduction and the conclusion, this article consists of three chapters altogether.Chapter One: The Definition of Joint Dangerous Act and its Theoretic Sources This chapter mainly dwells on the definition of the concept and characteristics of joint dangerous act. The definition of the concept of joint dangerous act is constituted of two aspects: the review on the theories about the concept of joint strict and opinion put forward in this paper about this concept. In order to discuss the issue of joint strict, we must first make clear the concept, which is the basis of the issue of the constructive requirements and civil liability. After the clarification of the concept and characteristics of joint dangerous act, a comparative study on the historical development of it is performed in the dimension of both practice and theory. The legislation and practice concerning this in our country has also been introduced.Chapter Two: The Constitutive Requirements of Joint Dangerous Act and its SignificanceThis chapter is a focus of the whole paper. In this chapter, the constitutive requirements of the joint dangerous act will be elaborated. Some comparative and positive analysis will also be presented concerning the contentions about the constitutive requirements of the joint dangerous act and with all this as a basis, the author's own understanding is put forward. Joint dangerous act is an important type characterized by a tort committed by several infringers. Subjectively non-infringers of joint dangerous act have mistake as well as infringers. Between infringers and non-infringers there is no conscious interconnection. The legislative goal of joint dangerous act is to help the injured party when the real defendant cannot be exacted. The actors'potentially dangerous acts themselves can prove their faults, in which case the negligence and intention of the actors do not really make any difference and their actual function is only to exclude the possibility of their conscious communication in the infringing of harms. As to the fault of non-infringers, it is believed in this paper that they also inflict dangerous acts in this case because their acts can be viewed can the outward presentation of their subjective fault and therefore they also have faults in a legal sense. Objectively the joint dangerous act does not emphasize coherence of the act but lay stress on the indeterminacy of the infringers. The author believes that the acts must be possible to make others injured and illegal, not necessarily with relations between the acts themselves. In order to become joint dangerous act, the acts must be possible to make others injured and threat their rights. Special relations of the actors and therefore special relations of the acts are not required and the time-and-space-specific connection of the acts are not necessary either. The causality of the joint dangerous act is the conjectural and alternative causality. The infringers bear joint liabilities on the basis of joint defect and activity.Chapter Three: The Civil Liability of Joint Dangerous Act and the Grounds of ReliefThis is another focus of this paper. In this chapter, we will define the civil liability of the men who commit the joint dangerous act, and the grounds of their relief. A deep analysis has been made on the basis of imputation, with a view to seeking the reason why the actors of joint dangerous shall bear the liability. The principle of determining joint dangerous act liability is based on potential damage act and unidentified defendant, and for that all actors must take the burden of proof. Those actors who can prove that their acts are not the cause of the damage can be exempted and there is no real need for them to prove who are the real infringers. In the final analysis the responsibility will be shared among those actors who cannot prove their innocence and this is proved fair for all of them and at the same the protection for the injured is not reduced.In the conclusion part, I argue that joint dangerous act is an important legal system in the law of modem tort. It is essential to establish this system to give full play to compensation, punishment and prevention of adjusting function of the tort law. When confronted with the conflict of interest between the innocent actors and the innocent victims, joint dangerous act will balance the interests of the two sides in manner of extending the range of responsibility and sacrificing the interests of innocent actors so as to maintaining the stability of the order of society and the equity and justice of the legal system. As far as the joint dangerous act is concerned, the scholars of our country hardly take any comprehensive and thorough research on the content of it. So in order to establish and perfect the scheme of joint dangerous act, attempts have been made to perform an in-depth analysis of the theory of joint dangerous act with as its basis the existent researches.