Judicial Application Of The Civil Code’s Equitable Apportionment Of Losses Rule

The rule of equitable contribution to damages,also known as "equitable liability",was stipulated in the General Principles of Civil Law and the Tort Liability Law.In the past,the equitable contribution rule,as a form of damage bearing in China’s tort law,was often applied inappropriately in practice due to the ambiguity of the regulation,which led to the influence of subjective factors on the judges.However,the application of the rule is in line with the current stage of development of social security and social insurance system,which can fill the loopholes of the tort attribution system and provide relief for the victims who suffer beyond their ability to bear losses.The rule has a special scope of application and value,therefore,in the face of theoretical and practical controversies,the Civil Code amended the rule and placed it in Article1186,limiting it to the "provisions of the law".This change has once again led to a heated debate on the rule of equitable sharing of loss.In this regard,the first chapter of the text clarifies the concept of the equitable contribution rule and explains the value of the rule.The second chapter analyzes Article 1186 of the Civil Code and distinguishes the direct and indirect application of the rule.Chapter 3 analyzes and summarizes 151 cases,and draws out the selection of the basis of the rule in judicial practice,the distribution of the scope of application,the judgment of the conditions of application,and the distribution of the scope and proportion of apportionment of damages.Chapter 4 identifies the problems of inconsistent understanding of the "provisions of law" in Article 1186 of the Civil Code,unclear scope of application,vague prerequisites and conditions of application,unclear sharing of the "scope of loss" and disparity in the proportion of sharing of loss.Chapter 5proposes to determine the meaning of "provisions of law" in Article 1186 of the Civil Code,limit the scope of application,prioritize the prerequisites and clarify the conditions of application,clarify the scope of contribution and establish guidelines on the proportion of contribution,taking into account the experience of past judicial practice,guiding cases and institutional experience for reference.