By Xiang Li, Jigang Jin (auth.)

The explosive monetary improvement in China over the past 3 many years has created social demanding situations unheard of within the country's heritage. In reaction, China has overhauled its current tort legislation or even created new tort legislation. via exploring its rules, theories and historical past, this ebook offers foreign readers a clean outlook on China's tort legislations procedure. Granted that a few strategies or theories in China's glossy tort legislation have been "borrowed" from the west, the foundations in the back of them can however frequently locate their roots in historical chinese language philosophies, suggestions or maybe legislation. This ebook additionally makes use of actual situations to provide an explanation for the courts' program of China's tort legislation and the that means of the corresponding statutes.

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Example text

If the victim cannot prove by sufficient evidence that the defendant was at subjective fault when he committed the act, then the defendant’s act is considered appropriate. Even if there is damage or injury, the defendant is not liable. ” That is, the perpetrator’s subjective fault is inferred from the fact that a victim’s legitimate interest has been harmed by the perpetrator’s act. According to this principle, if the victim can prove damage or injury, illegal act, as well as causation, and the perpetrator cannot prove that there was no intention or negligence relating to the act and damage, then the judge can make the presumption that the perpetrator is at fault and order him to pay for the damage.

Because of these reasons, people started thinking outside the box of fault liability and using a new approach to remedy a victim. This new approach is called no-fault liability in the continental law system and strict liability in Anglo-American law system. Of course, besides the social and economic reasons illustrated above, there were fundamental theoretical reasons for the creation of no-fault liability. Fault liability achieves civil justice through certain requirements on people’s subjective behavior and therefore fits in the notion of justice from the traditional and natural law’s perspective.

That is, the fault element is still a necessary element to prove fault liability, but that only the burden of proof is shifted from a plaintiff to a defendant. If the defendant can prove otherwise, he is relieved from the liability. But for no-fault liability, there is no opportunity for a defendant to refute its fault. In fact, the “fault” element is not even required here. As long as the defendant’s act has caused damage or injury to the plaintiff and there was no defense recognized in law, it is inevitable for the defendant to assume liability.

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