| At present,the system of tort liability by multiple persons is controversial,and has been regarded as a more complicated issue in tort law.However,in these disputes,the victim fault system and the tort liability system have long been the subject of separate studies.And in the situations that victim and tortfeasors all in fault,how does the comparative faults system apply to the multiple tort liability system? In foreign countries,the issue of comparative fault mixed with torts committed by multiple person has received some attention,they have realized the conflict between comparative fault and joint liability,and several liability sharing scheme have been developed based on respective comparative fault and absolute comparative fault.While comparing and drawing on these scheme,based on the characteristic provisions of Article 12 of China’s Tort Liability Law,the liability sharing scheme for multiple torts in the case of the victim’s fault also needs to make our own research in combination with domestic law.First of all,the sharing of liability involves the problem of the form of liability,and the form of liability is directly related to the distribution of the risk that the victim cannot be full repaid.In several liability,the victim can only claim compensation for a portion of the damage from a single tortfeasor.In this case,if some of the tortfeasor’s whereabouts are unknown or incapable of repayment,the victim bears the risk of not being fully repaid;In joint liability,the risk of inability to pay is assigned to the tortfeasors.But this all-or-nothing distribution,especially the application of joint and several liability,sometimes leads to unfair consequences.First,when the victim’s fault equals or exceeds the tortfeasors’ fault,joint liability should not continue to apply in the joint negligence torts and joint dangerous behavior tors due to the lack of the victim’s moral advantage.Secondly,in the cases of some tortfeasors’ are intentional and part tortfeasors’ are negligent,the comparative fault system and the principle of "intention absorption of negligence" need to be combined to analyze the application of the comparative fault system between the victims and different tortfeasors.That is,while applying the respective negligence to offset,the supplementary liability,partial joint liability and unilateral joint liability shall be applied to tortfeasors with different faults.Secondly,the victim’s faulty participation has led to different liability sharing scheme,include: First,the absolute negligence scheme or overall measurement scheme,which compares tortfeasors’ liability as a whole with the victim ’s liability,or treat the victim with the injurers as a whole to uniformly divide the liability ratio of the parties,the former is also known as the liability one unit scheme;second,the respective comparative fault scheme or separate measurement scheme,which compares the liability of the victim with the various tortfeasors for the overall damage,resulting in more than two Liability ratio,and the victim’s share of the final compensation does not exceed its share compared with the tortfeasor with greater liability,the tortfeasors bears partial joint liability for the overlapping part;third,the combination of overall measurement and separate measurement,this method first divides the total liability ratio of each party according to the overall measurement,and obtains the total amount of compensation that the victim can receive,and then distinguishes the maximum proportion that the victim can claim when indemnifying a single tortfeasor according to the separate measurement;Fourth,the tort law of the United States has taken another route to develop a system of liability redistribution,which directly redistribute the part that cannot be paid by the victim and another tortfeasor according to the original proportion when one tortfeasor cannot pay.In combination with domestic judicial practice,considering the procedural and technical difficulties,the respective comparative fault scheme should be considered to be applicable to some intentional torts;and other figures in the case of multiple tort,the absolute comparative fault scheme is applicable to the cases of several liability for torts(including the liability of negligent tortfeasors and security obligor),cases that victim participation in joint dangerous behavior,and joint intentional tort cases.Cumulative causality cases,alternative liability cases,and victims non-participating joint dangerous behavior cases should be applied with liability unit scheme.In addition,combine the liability redistribution system to allow victims and minor negligence tortfeasors to redistribute "Risk of can’t be repaid" according to the proportion of liability,or the rigidity of joint liability can be alleviated in cases of cumulative causality and common dangerous behavior.Finally,in accordance with the interpretation of Article 26 of the Tort Liability Law,both the victim’s fault and the tortfeasors’ fault in this article refer to the faulty behavior that have a causative effect on the damage result,and the comparison of faults in in this article are both comparison of the faulty behavior.At the same time,the alleged multiple tort in this article includes not only the joint tort and separate tort as stipulated in Articles 8 to 12 of the Tort Liability Law,but also other situations that result in multiple tortfeasors based on specific facts. |
