A Study Of The Negligence Offset In Tort Law

It is very common that there exists a broad link between the victim’s factor and damage,so in what condition can people reduce or remit the infringer’s liability of compensation is abasic issue in tort law. As one of embodiment of good faith principle in tort law, negligenceoffset rules is one of the basic issues of tort law concerns. But academic research is far fromenough, and the practice experience also needs to be summarized.Negligence offset rules is to determine the scope of liability. It cannot be equated to thevictim’s fault rules, but be part of the victim’s fault rules. At the same time, negligence offsetrules do not belong to the category of elements on tort law responsibility, but to determine thescope of damage compensation. It is the nature of the subject matter of liability relief. Sincerisk-taking, causality of interruption, common fault, profit and loss balance and blows is verysimilar, but has different nature, they must be strictly distinguished.The basic spirit of negligence offset rule is that when the damage occurred because offault of both parties, both parties shall reasonably share the loss. Therefore, negligence offsetrules is still the development of the fault liability in essence, it reflects the requirements offault liability in accordance with the requirements of fault liability and responsibility scope.However, there is a certain degree of tension between negligence offset rules and the functionand development trend of tort law, which requires the applying of the rules of negligenceoffset must be cautious.Constitutive requirements of negligence include the victim’s fault, causality betweenfault and damage, the victim’s behavior must be misconduct, the victim’s identificationcapability. The victim’s fault violation is a kind of "no real obligations". To determine thevictim fault, the standard of reasonable person should be lower than that of the infringer, atthe same time, when evaluating the victim’s fault; people should also consider more subjectivefactors and objective environment. When applying the negligence offset rules, people shouldconsider the victim’s ability to identify, and this is not conflict with the requirement ofresponsibility to the establishment of tort liability. Considering such recognition abilitydepends on the victim’s age, knowledge, mental condition and other factors. If one doesn’thave this identification capability, negligence offset is not applicable. And the examination ofthe causality between victim’s fault and damage, shall apply the same rules as establishment of tort liability.From the perspective of the scope of the subject, when a third person who has aparticular legal relationship to the victims has fault for causing or expanding the damage, theliability of the infringer for compensation can also reduced. The third persons includes agents,auxiliaries and their near relatives of the victims, but the fault of their guardians cannot beseen as the victim’s fault and negligence offset shall not be applied. From the applicable scopeof the responsibility, except the case of fair share of loss, there is space for the application ofnegligence offset both in fault liability and strict liability. The range of ruling out the rules ofnegligence offset has not been clearly and unfriendly defined so far. The methods ofcomparative law on the legislative cases can be referred that the personal injury and propertydamage are distinguished, and the application of negligence offset is limited in the types ofspecial tort, the projects of special damages and the legislative purposes of legal norms.There are two ways to determine the distribution of the amount of damage, which is inaccordance with the degree of fault or by size of cause force. But these two methods are oftenoverlapped. When applying negligence offset rules, which of the degree of fault and causeforce is priority depends on the specific doctrine of liability fixation. In addition to the abovetwo factors, other influential reason, such as age, occupation, economic situation andinsurance conditions of both sides should be also considered, so as to maximize therealization of social equity.