| The phenomenon of non-uniform rules of judgment in special constitution infringement cases is more prominent in practice.In this regard,the Supreme People’s Court has issued a special guidance case No.24,but the effect is limited.The crux of this kind of case lies in the difficulty of ascertaining causality and fault.The difficulty of the former lies in whether there is a causal relationship between minor fault behavior and the consequences of unexpected damage.The difficulty of the latter lies in how the special constitution affects the identification of the offender’s fault and how the special constitution affects the identification of the victim’s fault.Therefore,the crux of the special constitution can be solved based on the four elements of the liability constitution and the distribution path of the liability relief determined by the Tort Liability Law of our country.The existing judgment rules should focus on a large general clause and four elements of the general tort norms established in the Tort Liability Law of China.On the basis of differentiating the composition of liability and the allocation of liability,the focus should be on causality and fault.In terms of liability composition,the investigation of the causality between the injurious acts of the injured party and the unexpected consequences of the damage occupies the main position.At this time,the application of causality technology should be optimized to highlight the value judgement hidden in the causality.The specific path is based on the theory of equivalent causality in the mainland of China.It absorbs the viewpoint of "only predicting the object and type of damage,without predicting the way and degree of damage" advocated by the theory of predictability to highlight the value judgment of causality and affirm the causality between the injurious act and the anticipated consequences of damage.The investigation of the offender’s fault is of secondary importance.When examining the influence of the special constitution on the offender’s fault,we should distinguish the knowledge of the offender to the victim’s special constitution and make different treatment.When the offender knows or should know the special constitution of the victim,he should have a high duty of care to judge his fault according to whether he has reached the high duty of care or not;on the contrary,it is not necessary to examine the influence of the special constitution on his fault.In the allocation of liability,if the four elements of liability are met,in principle,the offender should bear all the liability.However,if there are legal reasons for reduction of liability,such as special physical victims and negligence,or if there are discretionary reasons for reduction,the liability can be reduced or mitigated according to law.It should be noted that the use of negligence here contains a logical premise,that is,special duty of care should be imposed on the Department of victims of special constitution within the scope of special constitution,but at the same time,this duty of special care should be interpreted in a narrow way,and the content of its duty of care should not be excessively expanded.As for the duty of care in special constitution,depending on the specific situation,only when the special constitution subject actively traps himself in the environment with a very high inducement of his own special constitution,can it be recognized that he violates the special duty of care in special constitution,that his fault exists,and that he can be applied with fault derogation.As an exception,based on special considerations,the causal force theory can still be used to determine the allocation of liability by damage participation appraisal in special constitution infringement cases in the medical field.But if the judgment method obviously deviates from the value judgment standard of respecting life and health,the responsibility can be discretionary. |
