| Fair responsibility can be said to be the product of morality and the concrete embodiment of the principle of fairness.In the current situation of imperfect social security and social relief in China and immature insurance industry,it has social functions of relieving victims and settling disputes.But the theory complexity and controversy of fair responsibility;The fuzziness of the legal provisions makes the judge unable to apply the fair responsibility accurately,and also causes the abuse of the fair responsibility.On May28 th,2020,the civil code of the People’s Republic of China(hereinafter referred to as "Civil Code")was adopted.Article 1186 changed the "according to actual situation" in Article 24 of the tort liability law of the People’s Republic of China(hereinafter referred to as the tort liability law)to "in accordance with the provisions of law".Unlike the previous provisions,article 1186 cannot be applied independently.The application of fair liability is clearly stipulated by law,that is,the "fair liability clause" stipulated by law,which limits the judge’s discretion from the legal provisions."Fairness" is mainly reflected in the moral level,and it is abstract.Fair responsibility is the result of legalization of moral justice thought.The abstract of thought conflicts with the accuracy of legal expression,which leads to the ambiguity of fair responsibility in the legal level.Although compared with the previous legal provisions on fair liability,the provisions of the civil code greatly limit the scope of application of fair liability,but there are still some problems in the provisions of fair liability in the code,which is not conducive to the judge to apply the fair liability clause accurately in the trial.Therefore,it is necessary to find out the problems and solve the problems in the provisions of fair liability in the civil code by analyzing the theory and practice of the fair liability.Through the analysis of the legislative evolution and judicial status of fair liability,we can find that the problems existing in the current fair liability clause in civil code are as follows: first,the elements of fair liability are vague,the scope of applicable subject is too wide,fault conditions are lack and causal relationship is missing;Secondly,the restrictions on the application are too strict,but the specific application conditions in judicial practice can not be included in the legislation,which may result in the rigidity of the application of the fair liability clause;Third,the scope and proportion of the loss sharing are not clear.In practice,the scope of the loss sharing even includes the compensation for mental damage,and the civil code does not make provisions in this respect;Fourth,there is no reference standard for determining the proportion of loss sharing.In judicial practice,the factors that judge apply are different,which leads to the large difference in the proportion of share.So far,there is still a great space for the application of fair liability clause in civil code,so it is necessary to perfect the fair liability clause.Based on the development of fair liability and the judicial status in China,the author puts forward the following suggestions for the improvement of fair liability clause in Civil Code: first,to refine the elements of the fair liability clause,including limiting the subject of loss sharing as the causing actor,affirming the causal relationship between the actor and the damage,and clarifying that the parties are not at fault subjectively;Second,the application of the provisions on fair liability is increased,namely,the cases of traffic accidents and the cases of the damage of the service provider;Third,determine the scope and proportion of the loss sharing,and make clear that the compensation for mental damage does not belong to the scope of loss sharing;Fourth,the unified consideration factor standard,the comprehensive consideration objective factor share the loss,the economic condition of both parties is the primary consideration factor. |
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