Research On The Third Party's Infringement Liability In Special Infringement

Special infringement includes the tort of presumption of fault in the application of liability for fault(Article 6,paragraph 2 of the Tort Liability Law)and no liability for fault(Article 7 of the Tort Liability Law).The concept of the second person who plays an indirect auxiliary role in responsibility is established.In the Tort Liability Law,the provisions of special torts involving third-party torts are Articles 40,43,44,68,75,83,and 85.The above provisions form the legal application system for special torts.However,it is difficult to justify the principle carefully.For example,in the presumption of fault,the third party’s tort liability to advance the liability violates the legal principle,and the supplementary liability violates the basic spirit of fault liability in modern tort law.This not only causes confusion in the application of law in judicial practice,but also causes difficulties in the interpretation of the applicable system when legislation is blank,such as the handling of the relationship between the two responsibilities when the high-risk liability and the liability of a third party are at fault Leading to completely different judgments in jurisprudence.Few scholars in the domestic theoretical circles have systematically discussed the situation of third-party infringement in special infringements,and few in the judicial circles have combed this.At the moment when the Civil Code is about to be considered,the author is not presumptuous and believes that in the presumption of fault liability,the basis of liability should be returned,the constituent elements under the principle of fault liability attribution should be applied uniformly,and the presumption of fault and the infringement of the third party should be set up.The co-infringement of the third party’s fault tort liability should be dealt with in accordance with the provisions of Articles 8-14 of the Tort Liability Law,and based on the specific circumstances of the case,the two parties’ respective responsibilities to the victim and their internal responsibility distribution should be established.When the person responsible for the presumption of fault can prove that the damage was caused entirely by the fault of the third party,the subject of the presumption of fault cannot establish a tort because of the lack of causality and the elements of fault.The tort liability stipulated in Article 40 of the Tort Liability Law shall be handled uniformly in accordance with the rules governing competing torts;while in Article 85 of the Tort Liability Law,in the compensation for damages caused by the fault of a third party,The responsibility of the owner and manager shall be excluded because it is not at fault.And the "unjointly applicable rules" stipulated in Articles 43,44,83 of the "Tort Liability Law" should be uniformly applied to all cases where no-fault liability and fault-fighting liability coincide to fill the gap in legislation.Therefore,it is even more necessary to amend the provisions of the special law concerning thirdparty infringement.In the proceedings where there is no real joint liability,if the plaintiff insists on bringing the two to the court at the same time,and is unwilling to proceed with the selective litigation,in order to save judicial resources,it should be accepted and judged to be faultless in the judgment The responsible person or the person responsible for fault shall bear the liability to the plaintiff.If the person without fault is compensated in advance,he shall have the right to claim compensation from a third party who is at fault after compensation.If the scope of liability of the two is inconsistent according to their respective constituent elements,the person without fault is only liable to recover from the person responsible for the fault within the overlapping range.When the person without fault is also at fault,the plaintiff has the right to choose a cause of action.If the plaintiff is not clear,he should choose it after the court has explained it.If the plaintiff chooses to sue for liability for fault,its fault liability with the third party shall be dealt with in accordance with the specific circumstances in accordance with the provisions of Articles 8-14 of the Tort Liability Law;if the plaintiff chooses to pursue its liability without fault,it shall be based on untruth The joint liability approach deals with its relationship with the liability of third parties for fault.