The Study On The Hypothetical Causation In Tort Law

The discussion of the hypothetical causation has received extensive attention since the period of Roman law.Urbian and other jurists have discussed about the liability of tortfeasors for damage in the hypothetical causation.In the modern civil law,there are still some jurists studying the hypothetical causation.Such thorny problems that plague jurists for thousands of years can be summarized that: the first wrongdoer causes the victim’s damage,but a second(hypothetical)event would undoubtedly have caused the same or similar damage,even if the first infringement does not exist.The question then arises as to whether the wrongdoer is liable for the damage resulting from these damage? If the wrongdoer is still liable for the damage,the liability of the wrongdoer can be limited? In this regard,the European tort law group also took note of the issue in formulating the principles of European tort law,and eventually provided the hypothetical causation in article 3:104 of the Principles of European Tort Law-Text and Commentary.German law,Swiss law and the law of Taiwan region have also made an intensive study of the hypothetical causation.Even in Germany and Taiwan region’s relevant department laws,the specific types of hypothetical causation problems have been made clear.However,at the present,the relevant laws of mainland China has not yet formulated,and scholars have not yet made a further research.In order to study this complex problem,first of all,it will summarize the common controversies in cases at home and abroad.Then starting with the concept and essence of the hypothetical causation,it will discuss the nature of damage and the time when damage should be determined.Finally,the limitation of the scope of the liability of the wrongdoer in the hypothetical causation is analyzed by the method of typological analysis,so as to provide useful suggestions for the study of the hypothetical causation.This article is divided into three parts:The first part is the definition and classification of the hypothetical causation.Firstly,this part will comb the concepts of the hypothetical causation,overtaking causation,and supervening causation,so as to analyze the similarities and differences between this three terms that different scholars use.In order to avoid unnecessary confusion due to the different terms,it will use the term "the hypothetical causation".Secondly,in order to further define the connotation and denotation of the hypothetical causation,it will compare the hypothetical causation with similar concepts,including alternative causation,concurrent causation,legitimacy substitutive behavior,and victims of special constitutions.Finally,the hypothetical cause is categorized according to whether the subject of the hypothetical cause can be attributed to the third party.The second part is the relationship between the hypothetical causation and the compensation for damage.Firstly,it will discuss the essence of the hypothetical causation,which is regarded as the category of damage,not the category of causations.Secondly,it will study on the relationship between the hypothetical causation and the determination of damage.Then the damage will be categorized into ultimate damage and sustained damage,according to at the time of occurrence whether the damage has been definited.Finally,it will study on the relationship between the hypothetical causation and the determination of the time of damage calculation.The third part puts forward the applicable rules and exceptions for the hypothetical causation.On the basis of absorbing the relevant literature at home and abroad,it will analyze the hypothetical causation by different types,and put forward the general applicable rules of the hypothetical causation in the range of damage.When the hypothetical cause is presumed to exist before the real cause,it should be discussed in two cases: the first one,if the subject of the hypothetical cause is attributable to the third party,the third party shall be liable for the damage of the diminished value of the subject.The wrongdoer shall be liable for the consequences leading to the advancement of the damage;the second,if the subject of the hypothetical cause is not assumed to the third party,the influence of the hypothetical cause shall be taken into account.When the real cause occurs in the former,it should be divided into three cases: the first one,if the damage is ultimate damage,the hypothetical cause shall not be considered;the second,if the damage is sustained damage,and the subject can be attributed to the third party,the hypothetical cause shall not be taken into account;the third,if the damage is sustained damage,but the subject is not attributable to the third party,the hypothetical cause shall be taken into account.Finally,there are two exceptions to the applicable rules.When considering the hypothetical cause will contradict the concept of social justice,and human moral factors,or violate the intent of the law,the above rules should be refused to applying for.