Research On The Application Of Equitable Liability Based On The Judicial Cases

Article 24 of the "Tort Liability Law of the People’s Republic of China",which is a general term of equitable liability with the dispute of legal attributes and the vagueness of legal provisions,has been widely used in various civil disputes and even has been used as a "miscellaneous provisions".There have been many "harmony and mud" phenomena which affect the justice and authority of our country’s judicial judgments.In recent years,as "the case of discouraging smoking in the elevator" and "the case of choking to death on a banana" had aroused public opinion in society,the abuse of equitable liability has caused disputes and reflections of the academic and practical communities once again.In order to solve this problem,legislators discussed and revised it repeatedly in the process of compiling the Civil Code.Finally,Article 1186 makes it clear that the application of equitable liability should be "in accordance with the provisions of the law",which greatly reduces the scope of its application.This change does have positive significance to solve the abuse of equitable liability,but it also makes the application of the clause become rigid,and there is suspicion of overcorrection.There are still disputes over the specific direction of the "legal provisions" of this article,the specific applicable conditions,how to apply it after the amendment,and whether there is any room for its application besides the legal provisions.The life of law lies in enforcement,and the authority of law also lies in enforcement.Therefore,in order to understand the applicable fair responsibility more accurately in practice,this paper uses case analysis to investigate the application of equitable liability in China’s judiciary.This paper takes more than 300 cases of equitable liability from the China Judgements Online as samples,and analyzes the application of equitable liability before and after the implementation of the Civil Code in China from the aspects of cause of case,level of trial,reasoning of the court,judgment results,citing of legal articles,etc.Through case analysis,it is found that the application of equitable liability still has some problems,such as unclear application circumstances,confusing application conditions,different standards,and random scope and proportion of loss sharing,which also leads to widely divergent judgment results in some cases of the same or similar cases in practice,affecting the judicial authority.In order to solve these problems,through literature research and comparative analysis,it is found that the main reasons for these problems are unclear legislative provisions,unclear specific application conditions,unclear theoretical positioning and unclear loss sharing investigation factors.Therefore,by analyzing and clarifying opinions,it is recommended to improve the applicable suggestion in conjunction with the current provisions of the Civil Code: using judicial interpretation or legal doctrine to improve the application of equitable liability,applicable conditions and loss-sharing investigation factors so as to form a rule.Standardizing the judicial judgments through the issuance of guiding cases and making full use of the mediation system to resolve disputes.It is expected to be helpful to unify judicial judgment and maintain judicial authority and justice.