A Jurisprudential Study Of Equitable Liability

Equitable liability means that both the victim and the doer are not at fault for the occurrence of the damage and both parties share the loss according to the provisions of the law.In Article 1186 of the Civil Code,which was implemented on January 1,2021,the "equitable liability" clause was amended for the second time after the Tort Liability Law,which is a major reform of the legal thinking in the field of tort law.The fair liability clause still exists in Chinese civil law history after many years,and its own value is self-evident.The theoretical circles have never stopped the disputes on this clause from its existence and abolishment to the legal property and to the theoretical problems existing in the judicial application.With the advancement of the country’s comprehensive rule of law process,judges through the application of equitable liability clause to achieve the result of "settling litigation and maintaining stability" has not been suitable for the requirements of The Times and development.More importantly,only to let the parties feel fairness and justice in the case is the ultimate goal of the current construction of the rule of law.The continuous improvement of the fair liability clause is because the law should respond to the constant changes of the society,but no matter how the law changes,the real value pursued by the clause remains the same.This paper starts with the legal connotation of equitable liability,combines with the existing problems in judicial application,and analyzes the manifestations and causes of the problems,in order to clarify the positioning and applicable standards of equitable liability clause,and promote its full play of due value.This paper is divided into four chapters:The first chapter is the connotation research of equitable responsibility.Firstly,the general meaning of equity is explained and listed from the 5000 years of Chinese civilization,and the legal meaning is explained by combining the relationship between equity and law.The legal meaning of equity is compared with "equality" and "justice",and the legal meaning of the word equity is obtained.Secondly,it enumerates its usage in modern Chinese when explaining the general meaning of liability,and obtains the legal meaning of liability by combining the academic viewpoint of legal liability and the legislation and practice of equitable liability.Finally,in view of the academic controversy on the fair liability theory,this paper explains the nature of the fair liability and whether the clause can be used as the imputation principle,and positioning the fair liability principle as the fair loss sharing rule is more suitable for the current development.This part points out the necessity of the existence of equitable liability and leads to the following discussion on the realization of the value of the clause.The second chapter is the value investigation of equitable responsibility.By discussing its value of justice,order and freedom,combining with the spirit of civil law,legislative materials and practical cases,this paper expounds the benefits of this article to the advancement of the construction of Chinese rule of law after many revisions,as well as its role in further restricting the phenomenon of misuse and misuse in practice.Its legislative value is also a response to the question about the existence of the principle of equitable liability for many years,which proves the necessity of the law to exist in civil law.The third chapter is the legislative form analysis of equitable responsibility.This paper analyzes the legislative form of equitable liability by dividing it into three nodes according to the implementation time of laws,and systematically compares the normative expression of Article 132 of General Principles of Civil Law,Article 24 of Tort Liability Law and Article 1186 of the Civil Code.This paper expounds the nature change caused by the amendment of the equitable liability clause in the Civil Code and the limitation of its application in practice.After the vertical comparison of the amendments,the problems existing in previous amendments are put forward,and the Civil Code is finally strictly revised,which can respond to theoretical disputes to a certain extent and guide judicial practice.The fourth part is the judicial application of equitable responsibility.This part is a case study,which is divided into four parts: the introduction way of the equitable liability clause,the interpretation method of the equitable liability clause,the discussion of the judgment effect,and the improvement suggestions for the problems in practice.In Chapter 4,judge applied interpretation method in the trial found the problems,citing a large number of judicial cases to summarize the problems in judicial application,combined with our long-term practice and national conditions to put forward suggestions,let the fair responsibility return to its original meaning,exert due legal value.