Study On "Battery Suit" Of Anglo American And Its Enlightenment To China

"Protecting the legitimate rights and interests of the civil subject and the prevention of and sanctions for violations" is the purpose of legislation, which is established in the first article of "Tort liability law".However, since the implementation of the law,the intentional personal tort has not been effectively curbed,and the victim’s legitimate rights and interests has not been fully guarantee either.According to the data which was published on "China judgment net",judgments of the people’s courts at all levels to intentionally personal tort cases reached to a total of409and the percentage of appeal was40%in Zhejiang Province from January to September in2014.Accordingly,the incidence of the intentional personal tort in China is high,and the rate of satisfaction of the parties to the judgments is low."battery suit" of the Anglo American is an important system to regulate the intentional personal tort.The meaning of "battery" of the Anglo American Law is not completely equal to Chinese vocabulary "beating",the former extension is much larger than that of the latter. In the countries of Anglo American law system,any intentional harmful or offensive contact to others" body may constitute battery.Even, intentional injury to or offensive contact to objects connecting with others also constitute battery.Battery is of actionable per se,the subjective intent and contact behavior are the two most important elements for establishing tort liability of battery. Battery can produce the liability for damages,which is similar to the relevant legal system in continental law countries.But battery can also produce liability for nominal damages and punitive damages. The victim may obtain nominal damages when he can not prove actual damages.On the basis of damage compensation, the victim can also obtain punitive damages."Battery suit" of the Anglo American comprehensively protect personal rights and interests of the victims,and effectively restrain intentional personal torts.The "battery suit" has important significance for the perfection of personal tort and compensation system in China.This paper adopts empirical research method and comparative method. Firstly, this paper analyzes empirical data of relevant court judgments, finding the problems and defects of personal tort and compensation system which are exposed in judicial practice in China, and putting forward the necessity of research of the problem. Secondly,this paper researches the theory,legal precedent and legislation in Britain and the United States,A comprehensively introducing the "battery suit" system in common law.At the same time, this paper makes a specific study of the relevant systems of continent law countries and regions,and comparatively analyzes the relation and the difference between the two law systems about intentional personal tort system and compensation system. Finally,on base of national conditions,connecting with the experience of foreign law,this paper Relevant puts forward relevant suggestions to tort law in China. This paper is mainly divided into the following three parts:The first part:the overview of "battery suit" of the Anglo American Law.In order to maintain the consistency of academic research,this paper translates English word "battery" into "beating".In fact, the meaning of "battery" is broader than "beating".In the Anglo American Law,"battery" refers to intentional injury or offensive contact to others."Battery suit" originates from Writ of trespass of the Anglo American Law.In its development,some related defenses and negligence of personal tort gradually produced. The restatements of tort law of the united states further developed and perfected the system of "battery suit".Especially the "The second restatement of tort law" divided battery into offensive contact and injury contact.Comparing to threats,illegal imprisonment,mental damage and some relevant intentionally personal tort,battery has its own significant characteristics.In"battery suit",the subjective intention and the contact behavior are the two most important elements, and the damage and causal relationship can be confirmed by the presumption."Battery suit" can produce compensation for damages,nominal damages and punitive damages.The second part:comparative study of "battery suit" and related systems in continent law.Two cases that Co-Operative Group (CSW)Ltd v. Pritchard in Britain and Fisher v. Carrousel Motor Hotel in the United States are the typical cases about "battery suit",especially the latter case has far-reaching influence in the United States.The two cases explain the basic content of "battery suit". Germany, Japan, Taiwan of China and other countries of continental law system established fault personal tort and the damage compensation system.Tort law is these countries does not distinguish between intentional personal tort and negligence of personal tort,and does not recognize nominal damages and punitive damages in intentional personal tort. By comparison,the two law systems both pay attention to disability compensation,death compensation,protection of the right of body and compensation for mental damage.Nominal damages and punitive damages have not been admitted in continental law countries,but they seem to be gradually recognized in disguised form in the judicial practice of individual countries.The third part:the Enlightenment of battery suit to tort law in China.According to the development of the relevant legislation in our country and the provisions of the existing tort law, tort law in China also has legislative defects in protection of the body right, regulation of intentional personal tort, damages, compensation for mental damages, punitive damages, disability compensation and death compensation.On base of the realization of legislative purpose,the need of judicial practice,the study of comparison of law and achievement of good legal effect,this paper puts forward legislative proposals to perfect the legislation of tort law in the following six aspects:Firstly, addition of the right of body;Secondly,distinction between intentional personal tort and negligence of personal tort;Thirdly,addition of the nominal damages;Fourthly,expansion of the scope of mental damage compensation;Fifthly, application of punitive damages in intentional personal tort;Sixth,making clear that disability compensation for the victim is the compensation for the future income loss, death compensation is the compensation for dependents for living expenses.