On The Effect Of Breach Of Regulatory Norm In Judgement Of Negligence

Both the regulatory norm and the tort law are the methods to avoid the damage,and the obligations under them can often coincide.It is not clear what effect the breach of regulatory norm has in judgement of negligence so far.Although the article 58 of the Tort Law makes a clear provision,it can be only applied to the liability for medical malpractice.Due to the lack of consensus on this issue,there are great differences among the judgments of the courts.Accordingly,it's essential to study the issue further.Except the introduction and conclusion,this thesis can be divided into three chapters.The first chapter is “Breach of regulatory norm and judgement of negligence”.In the background of state regulation,the abstraction of reasonable person standard and the reversal of information advantage bring the challenges to the traditional standard of negligence judgment.Although the standard of conduct set by regulatory norm can overcome the disadvantages of reasonable person standard,it is a minimum standard of conduct rather than an optimal one.Besides,the legislator does not pay attention to the liability for damage while formulating the regulatory norm.So the reasonable person standard can't be replaced by the regulatory standard.The second chapter is “Comparison research on the effect of breach of regulatory norm in judgement of negligence”.In comparative law,a great deal of research has been done on the effect of breach of regulatory norm in the judgement of negligence,and the two legal systems have developed a series of distinctive rules.In the Common Law,England treats the conduct of breaching the statutory duty as a convincible evidence of negligence in tort action.Meanwhile,there are three different theories in America.The Restatement(second)of Torts adopts “negligence per se” and “evidence of negligence”.The role of juries in tort action and workers' compensation statute make the differences between two countries.In the Civil Law,the German Civil Code and the “Civil Law” of the Taiwan region distinguish the regulatory norms into protective norm and non-protective norm,pointing out only the protective norm can affect the judgement of negligence directly.Protective norm can relieve the burden of proof to plaintiff through the anscheinsbeweis in Germany.Meanwhile,the mechanism for mitigating the burden of proof is presumption of negligence in Taiwan region.For this reason,there are differences in the scope of disproof between Germany and Taiwan region.The third chapter is “The standpoint of interpretation of the effect of breach of regulatory norm in judgement of negligence”.Drawing on the experience of comparative law,only the protective norm can affect the judgement of negligence directly,which not only conforms to the ordinary meaning of “debt” in civil law,but also covers the shortage of legislative model of the Tort Law.When judging a norm is a protective norm or not,it should be judged individually by the purpose of regulatory norm.In terms of the method to reducing the burden of proof,the dominant theory in German is more suitable for China,breach of protective norms would be the anscheinsbeweis evidence of negligence.In order to be excused,defendant could prove that he is not negligent in breach of the protective norm or the occurrence of damage.The innovation of the thesis can be seen as followed: it's more than introducing the rules of comparative law,but focuses on the reasons for different theories and rules.In the legal interpretation,there is no separation from the current legal system in our country and drawing blindly on the experience of comparative law.In order to avoid the research staying on the theoretical level,the thesis also combined with the judgment to carry out an application of conclusions in the end.The shortcoming of the thesis is that because of the limited research ability,there is no in-depth demonstration on some issues.Although the conclusion is applied in combination with some specific cases,the types of cases involved are mainly unlicensed driving and breach of safeguard duty,and the singularity of the types of cases may affect the comprehensiveness of the conclusion.