Research On The Application Of The Fair Liability Clause In The Civil Code

Article 1186 of the Civil Code,adopted on May 28,2020,further revised the fair liability,in which "in accordance with the provisions of the law" is considered to be an effective means of limiting the scope of application of fair liability,but the high generality and abstraction of the fair liability law is still an obstacle to unifying the judgment path and scale in judicial practice.After sorting out the academic views on fair liability,it is found that there is still no consensus on the legal attribute of fair liability,the applicable type of fair liability and the proportion of compensation.This paper collects 100 cases related to 1186 articles of the Civil Code since its entry into force,and through the investigation of their applicable conditions,the sorting of legal basis,the classification statistics and the statistics of adjudication,it finds that the judicial errors in the application of the fair liability clause are: first,the constituent elements are unclear,the concepts of the applicable subject "victim" and "actor" are not clearly defined,and the fault elements and causal relationship are missing;The second is that the applicable situation and type are unclear,and there are a large number of types other than legal situations;Third,the scope of loss sharing between the two parties is different,the proportion of loss sharing is randomly divided,and the argument is not convincing.After analysis and consideration,this article makes a path response to the misunderstanding of the application of fair liability judgment in the case: first,the judge should clearly define the constituent elements of fair liability,and the subject of loss sharing,especially the concept of "actor" should not be excessively expanded,and at the same time,it should be clear that the actor and the victim are not at fault subjectively,and the causal relationship between the actor’s behavior and damage is affirmed in the causal relationship,Not only the conditional causal relationship but also the equivalent causal relationship should be satisfied,which does not belong to the application of no-fault liability;The second is to clarify the applicable types of cases,increase the types of spontaneous activities and traffic accidents whose responsibilities cannot be determined,guide the judge’s trial through judicial interpretation or case guidance,and strictly exclude the application of medical disputes and operator compensation types,so as to ease the one-size-fits-all rigidity between expansion and contraction;The third is to determine the scope of loss sharing and the factors to be considered,exclude the compensation for mental damage from the scope of loss sharing,strictly examine the reference factors for the proportion of loss,and put the objective factors in the first place,including the economic situation of both parties,the extent of the victim’s damage,and the extent of the actor’s impact on the damage.In addition,other factors can be considered,such as the economic level of the region,the purchase of the victim’s insurance.The judge should clearly state the reasons for making proportional share in the judgment;judges need to strengthen their argument when applying the fair liability clause.