The Legislative Construction Of Livelihood Allowance System Of Compensation For Damages In China

China’s damage compensation law generally adopts the principle of full compensation liability.But in exceptional circumstances it can lead to unfairness.Therefore,it is necessary to take the path of limited compensation to perfect the damage compensation system in China and make up for the substantial injustice caused by the principle of full compensation liability.It is necessary to establish the livelihood allowance system to alleviate the injustice caused by the rigid application of full compensation liability by referring to the legislative path of overseas countries and regions.Since modern times,the advent of the risk society makes the tortfeasors’ risk liability more diversified and serious,and the "corrective justice" has also changed to "distributive justice".The subsistence allowance system enables those who do not have the ability to pay compensation or those who are obliged to pay compensation to be able to maintain decent social survival under the circumstance that they are in a difficult situation.This paper discusses the specific path of establishing the system from the aspects of the necessity and feasibility of establishing the system,application conditions and legal consequences,etc.Firstly,the full compensation liability is too rigid and unfavourable.From the perspective of China’s legal environment,the people’s livelihood guarantee of the civil procedure law cannot replace the discretion of compensation liability in tort law.At the same time,the lack of personal bankruptcy system make personal debt is too high and cannot survive,secondly,Switzerland,South Korea,Austria,Germany,Europe and other countries and regions have a mature livelihoods reduction pattern can be as reference,such as Switzerland,Germany,Europe to compensate for and make the pattern for the taxpayer’s survivability burden reduction,South Korea,Austria take compensation principles associated with the degree of negligence livelihood reduction mode.Taiwan regards the discretionary provision as a supplementary discretionary mode to the full liability.At the same time,when determining the amount of compensation for damages,the livelihood allowance system can be applied in coordination with the rules of predictability,profit and loss offsetting and negligence offsetting.This provides the legislative and judicial feasibility for the construction of livelihood discretionary system in our country.The concrete construction of livelihood discretionary reduction system is as follows:the nature of discretionary reduction is the right to form,and the party concerned claims and bears the burden of proof that meets the requirements of exercising discretionary reduction;The exercise subject is a natural person,excluding legal persons and other organizations;The subjective state of the discretionary right is no fault,slight fault and general fault,and the discretionary right should not be applied intentionally to reduce the liability of the infringer.Finally,the legal effect of the system of subsistence allowance is that the amount of compensation of the obligor is reduced within the scope of subsistence allowance,and at the same time it is extended from the original state to the broad scope of compensation for damage such as replacement,repair or redoing.At the same time considering the obligor in the short term gain fortune right holder may continue to advocate debt repayment,because it can meet the demands of the unity of rights and obligations and fortune during the short for making obligatory livelihood reduction loss,the basis of the court should be the reduction should be when the obligor will restore strength by inheritance or bequest into account.