Objectivating The Judgement Of Negligence

Fault is the core concept of modern tort law. Negligence as the lower concept of the Fault in tort law is an quite important legal concept. However, the theoretical nature of the negligence and its attributes is not in dispute. The controversy of the legal basal concept for the essential attribute in Tort law ,will affect the other rules of tort law apply. This article discuss the issue from this point, the essential attribute of the nature of the negligence analysis. Inquirying the root of the dispute of negligence subjective and objective. This article holds that the main dispute about the essence of the negligence is only logical that formal. No matter the essence is what, the concept of negligence in tort law always focusing on the behavior and the existence of certain obligations. Negligence is always recognized the core concept of Tort law in Civil Law system, and a violation of different types of Civil Law countries do not form. And in these countries, Tort Law dose not distinguish between intentional tort with the negligence tort, and require different requirements of each of the constituent elements. Instead, ask the negligence as the general conditions that constitute violations. So the concept of negligence as the lower concept of fault from the current legal theory, we should adhere to its subjective nature of negligence, make the negligence as the subjective state of mind. The essence of negligence dispute, in essence, is the standard of judgment of negligence. It is the negligence of subjective criteria to judge by the standards of objective criteria caused by the dispute of the nature of the challenge. Then we adhere the subjective attribute of negligence , the logical lly,shall we must use subjective negligence criteria? This article analyzes the process of use the different criteria judging negliegence, by the process making a judgment analysis, We see that this no essential differences between different criterion, the conclusion from different standards have no essential different. The negligence of the judgement by two ways were to speculate, fiction, are closer to the true state of mind and not the person infringing acts. This offer the oretical possibility of objective criterion for judging subjective interpretation of the negligence. In fact, the separation of the subjective attitude and objective criteria would have appeared in ancient Roman law. Ancient Roman adopt the subjective negligence, in the same time, using "good father " standard to judge negligence.In fact, the fault of subjective and objective criteria for judging criterion will not cause confusion . the transition from a subjective standard to objective criteria for to judge standards is not only for the merits comparison. Behind the changes in the criteria for judging negligence is a deeper level of social life changes and amendments to the tort theory. Subjective theory of negligence fully reflects the rise of the bourgeois period spirit and excellent competition value. Capital goods production attention to the privacy of the entire private implement individualism, liberalism's guiding ideology, fully respect the will of freedom, to encourage the initiative and ambitious. So tort must take a stand limit liability and protect the perpetrators, in order to protect the fledgling of industrial enterprises, to divert risks and compensation for damage caused from the burden ,and grow rapidly. Meanwhile, the social capitalist commodity production, through competitive pressure, to be offset to maintain the various deviations. This requires legal admit damage to a certain extent reasonable and permissible. So the essence of the principle of fault liability is not " take on responsibility if have fault, ," but " no liability if no fault." Such efficiency priority value to the protect the freedom of act instead of protect victims. With the development of the capitalist economy gradually show the side effects. The Tort law start to think much of both efficiency and fairness, and to some extent in favor of fair values. This change not only break the fault principia in the attribution of principle, and in the internal fault principia of the responsibility, influence the criteria of negligence for judging changes.The objective criteria of negligence to be discussed, analyzed, is just because the changes of value with a focus on social development and changes in the law of tort. The objective criteria for judging standards can be more effective than the subjective judgment in protecting the victim .First, the objective criteria could reduce the burden of proof of the victim's. Usually the attributes of negligence were considered the factors affect the allocation of the burden of proof. Actually the real factor affect the allocation of the burden of proof of negligence is the standard of judgment rather than the negligence of the nature . Under the objective standard ,the judge only need to creat a fictitious "middle" reasonable person to judge whether the acts could constitute negligence or not. This makes the victims do not need to prove the subjective state of the behaver, and do not need to prove the personal things about behaver. This will alleviate the burden of the victims. Secondly, the objective criteria for judging negligence will increase the standards of conduct. When the objective criteria for judging negligence is using , the behaver to avoid the law must not be less than or equal to the reasonable people in the abstract. And the actual capacity of the behaver belower than the ability of reasonable people can not be the grounds for exemption. So from this the tort law could estabilish a higher standard of behavior.This artilce also classified the standard of negligence judgement . From the perspective of the person and the obligations. From the perspective of the person , analysized the objective criteria operating conditions. From the perspective of obligation, analysis of legal obligations, trade practices, rules and the imposition of an obligation of social life. There is something must be mentioned with the two different criteria. they can be used in cross in negligence judgment. In addition, These two aspects of the details of the criteria for judging negligence have supported this conclusion -- the principle of objective criteria for standards ,and subjective standards to support standards.As for the relationship between subjective judgment of negligence and standards of objective criteria, We could establish objective criteria for judging the negligence priority. On the other subjective criteria should be limited the scope of application. The limited scope of the application of subjective judgment could used when the negligence in limitary situation. Only within a limited area the subjective criteria of negligence could be used. The study of the factors of the individual will act as the basis for judgment negligence. In the main, subjective criteria of negligence for use, depending on the occassion should be considered acts of the individual factors. And under different circumstances, the different negligence standards for judging the subjective should be united.