A Study On The Legal Philosophy Of Fair Liability Clause

For more than thirty years since the birth of the equitable liability clause in China,the controversy over its legal nature,practical effect and justification has never ceased.What kind of legal philosophical thinking to look at the "fair liability",how to think about and review the justification,necessity and substitutability of the "fair liability",is crucial to the application of the fair liability provisions after the implementation of the Civil Code.The function of equitable responsibility is essentially to transfer part of the state and society’s obligation to provide assistance to the disadvantaged to individuals,so as to make up for the institutional deficiency of social relief.The existing equitable liability provisions do not have sufficient justification and are in obvious conflict with the legal and philosophical basis of tort law.The concept of equitable liability can be traced back to the Prussian Civil Code in 1794,while the equitable liability provisions in China are obviously influenced by the Soviet Civil Code in 1922.The development of the fair liability clause in China has gone through the process from the principle clause of the General Principles of Civil Law to the principle clause + rule clause of the Tort Liability Law,and then to the closed rule clause of the Civil Code,with the scope of application gradually restricted and the direction becoming more and more clear.Subsequently,the relevant legal philosophical foundation claims supporting equitable liability are introduced,including distributive justice claims,utilitarian-style social harmony claims,moral intuitionism and retributivism,among which the first two claims have the most supporters and the strongest representation.The second chapter of this paper begins with a critique of the application of the fair liability clause in our legal practice.From the 2005 Nanjing Peng Yu case,which had a profound impact,to the 2018 Zhengzhou case of sudden death by persuasion of smoking in the second trial,and from the data of the past cases on the website of the judgment documents,the fair liability clause in practice has a free mind problem,a legal causation problem and a unified legal application problem,and the cases that require the application of the fair liability clause to deal with often trigger strong repercussions in society,especially The negative impact of the Fair Liability Clause is particularly strong.At the same time,the problems of the fair liability clause itself are more fundamental in the legislation.Even though the current Article 1186 of the Civil Code has made many improvements on the basis of its predecessors,there are still problems such as rigid application of rigid provisions,difficulty in identifying the existing group of equitable liability provisions and the lack of criteria for establishing new types of equitable liability matters.Regarding the above problems in practice,the third chapter of this paper points out that the fundamental reason of the above prombles is the weakness of the legal and philosophical foundation of equitable liability itself,which makes many inferences difficult to be justified.The fair liability is in conflict with the philosophy of corrective justice,the philosophical foundation of tort law,and there is no corrective object of corrective justice-"fault" in the fair liability case.Secondly,the distributive justice in tort law also cannot match the existing connotation of equitable liability in terms of applicable connotation.In terms of social welfare theory,the intention to rely on equitable liability provisions to recover losses may instead lead to inefficiency due to the judicial costs in the process,followed by the existence of a more social damage sharing model that can meet the requirements of social welfare theory,and finally,the state of social harmony at the cost of infringing on the interests and freedom of innocent people will also be criticized for the utilitarianism behind it.In the fourth chapter,the author tries to find a way out of the alternative institutional rules for the equitable liability clause,taking the social law attribute behind the equitable liability clause as the fulcrum,reflecting the institutional interface between tort law and social law,and arguing that the equitable liability clause exists as an incomplete social remedy and contains the possibility of being replaced by other systems.In terms of the system that is available,commercial insurance and social security system are worth considering.As the development of China’s governance system and ability,the way of dealing with damages should be diversified and welfare-oriented,and civil litigation procedures are not always the best way to resolve damage disputes.