On The Constituent Elements Of Joint Dangerous Act

Nowadays, cases causing by many different people are becoming more and more in our daily life. When the damage occurred, the victim may not have the ability to prove who the real perpetrators were. So, how to protect the rights of the victims at this time is a serious question which we have to face up. In order to protect the right of victims, Joint dangerous act was raised to solve the victim's burden of giving proof or evidence. The so-called Joint dangerous act means that there are two or more persons having violated the rights of others, and the real perpetrators causing the damage cannot be identified. According to Article 10 in "Tort Liability Act", when the real perpetrators cannot be identified by the victim, all the people who have caused the damage should all be responsible for it. It is stipulated that the reason why all the perpetrators should be punished is called Attribution Basis. Theorists have given explanations from different aspects, such as the subjective aspects of human behavior, or from the objective aspects of behavior, etc. But these theories are inadequate and cannot convincingly reveal the Attribution Basis of Joint Dangerous Act. I think from an academic perspective, it is hard to give a clear definition of the Attribution Basis of Joint Dangerous Act. And we should think about two different angles. One is the choice of interests, and the other is unknown aspect of the real perpetrators.The Attribution Basis of Joint Dangerous Act gives the basis of the liability in law. Only when we get this basis can we tell whether the person should be responsible for the damage. And the standard we rely on is what we called Constituent Elements. Constituent Elements is designed to study the theory and practice for judicial services, as for this, the Constituent Elements of Joint Dangerous Act must be consistent with its essential character and be accurate and intuitive. Therefore, I attempt to reconstruct the Constituent Elements of Joint Dangerous Act by combining the elements in traditional theory and the special elements of Joint Dangerous Act, and draw lessons on the four elements in criminal law, in order to give a clear explanation of the Constituent Elements of Joint Dangerous Act. The author believes that the Constituent Elements of Joint Dangerous Act should include the following parts:the main elements, the behavioral elements, the elements of damage and the causal elements. The unknown specific infringer is the core of the elements of Joint Dangerous Act. Not only is it the basic common sources of the Constituent Elements of Joint Dangerous Act, but it is also the important factor to differ Joint Dangerous Act from no means to contact, but are jointly and severally liable for infringement and the violations when the perpetrators is unknown. In addition, due to the specific infringer is unknown, which directly results in the presumption of the causal relationship between damage and the fact, the law regulate that only when the person causing the risk must prove who the infringer is can he avoid the responsibility. So, for the Joint Dangerous Act, the unknown infringer is the core element.A reasonable constituent element is to see whether the constituent elements of the joint dangerous act can make a clear distinction among some similar behaviors. It can be seen by comparing analysis that the constituent elements of the joint dangerous act can easily distinguish joint torts, parabolic infringement and other joint tort.In addition, "Tort Liability Act" has put into effect since July 1,2010, meanwhile the relevant judicial interpretation has become lag. So it is the necessary to modify the judicial interpretation. In order to maintain the unity and harmony of the legal system, we pay close attention to Supreme People's Court with the hope that introducing new judicial interpretation.