Research On The Tort Of Victims Of Special Constitution

In China,the cases of damages for victims with special constitution are numerous,and their judgments are different.The influence of special constitution on tort liability is not clearly defined in laws,regulations and judicial interpretation.Although the supreme people’s court in China has issued a special constitution-related guidance case in 2014.The case confirms that in traffic accident cases,the special constitution has played a certain role in the occurrence of damage,but the special constitution is not the fault stipulated by tort law and other laws,and has no causal relationship with the consequence of damage,so it does not reduce the liability for damages of the injured party.On the one hand,due to insufficient reasoning in the guidance cases,the judgment reasons of the guidance cases do not have direct normative effect.In motor vehicle traffic accident cases,there are still many court decisions that go against the guiding case,which consider the participation ratio to reduce the liability of the injured person,and the items of damages mitigated by different courts are also different.On the other hand,in addition to traffic accident disputes,there are also a large number of cases of medical damage,the right to life,the right to health and the right to body damage cases in judicial practice.There are differences in the facts of different cases,so it is controversial whether the 24 th guiding case judgment standard can be uniformly applied.To this question,different theories analyze causation,fault,and the combination of various components,but fail to arrive at a unified answer.By analyzing the judgment reasons of tort cases with special constitutions in judicial practice,it can be seen that the influence of special constitutions on tort liability is controversial because the judicial practice has different views on the influence of special constitutions on the determination of the fault of the offender,having faults of the victim,and causality.Therefore,this paper will study these problems.To study the effect of special constitution on liability for damages,we should first define the connotation and extension of special constitution.There is no definition of special constitution in Chinese laws and regulations.This paper abstracts the connotation and extension of "special constitution" in the sense of tort law by sorting out the concept of "special constitution" in judicial cases and theories.It refers to the constitution of the body structure,physiological functions and psychological factors that are more vulnerable to damage when the victim is subjected to the tort than ordinary normal and healthy people.Including innate heredity and acquired disease,disability,physical aging,also the physical or mental special constitution.The offender who violates the duty of care shall be liable for compensation for the damage of the victim,including the expanded damage portion caused by the combination of special constitution and tort.The fault of the infringer shall not affect the scope of damages.As long as the offender violates the duty of care and causes damage,he shall bear full compensation liability for the damage suffered by the victim with special constitution.However,compensation for mental damage cannot be quantified and the principle of full compensation is not applicable.When the perpetrator knows or should know that the victim has a special constitution,his duty of care should be increased.An offender who intentionally torts shall not reduce his liability for damages due to the general negligence of the victim.When the offender knows or can infer from the body and age of the victim that the victim has a special constitution,the offender has a higher duty of care than facing a normal healthy person.If the offender violates the duty of care and commits a tort,even if there is no intention of infringement,when the causal relationship between the tort and the damage is satisfied,the offender shall compensate the victim of special constitution for all the damage.If the victim with special constitution violates the duty of care to take care of and protect himself,resulting in the occurrence or expansion of the damage,the liability for compensation of the offender shall be mitigated or exempted.It should be made clear that the particular constitution itself is not a fault.When the victim with special constitution violates the real obligation or non-real obligation,the liability for compensation of the offender may be reduced or exempted.The scope of the non-real obligation of the victim with special constitution should be limited and should be considered in different types.The identification of cause-and-effect relationship in special constitution victim compensation cases follows the analysis of cause-and-effect relationship at two levels: establishment of liability and scope of liability.This paper adopts the theory of equivalent causality,that is,the combination of conditional theory and equivalence,to test whether there is a causal relationship between liability and scope of liability.When the special constitution of the victim and the infringement act combine to result in the infringement of the right to life,the conditional relationship is satisfied,but the equivalence is questioned.At this point,the causal relationship can be made up through the purpose of the law(schutzzweckder haftungsnorm normzweck).In the cause-and-effect relationship of the scope of liability,due to the higher value level of personality rights such as the right to life,the principle of equal protection of law,and the unpredicable size of damage because of more or less contingent factors,the combination of the victim’s special constitution and the infringement behavior leads to the expanded damage,and the injurer should also bear the responsibility.In the specific calculation of damage,property damage and mental damage,damage and lost benefits can be considered separately.In medical injury disputes,the causal relationship is complicated and difficult to prove,and because of the high risk and public welfare of medical activities,the proportional causal relationship can be applied.However,there should be a cause-and-effect relationship between medical malpractice and infringement of rights and interests.