Dean of RUC law school cited the case

What is the tort law? (a)

Speaker: Wang LimingProfessor, Dean, Renmin University of China School of law

The president of the civil law will China law

Discussant: Zhu JingwenProfessor of Renmin University of China Law School

Feng YujunAssociate professor of Renmin University of China Law School

Moderator: Wu ChunqiDoctoral student of Renmin University of China Law School

MorePoint: Renmin University of China law school Mingde law building room 708

When theBetween late October 27, 2006: 6:30

Moderator: dear teachers, students, good evening! As we all know, the real right legislation is now coming to an end, and now the legislation of tort law has already started, we are very concerned about the study of tort law for many fundamental. Today our civil law frontier and jurisprudence forum invited to my teacher Wang Liming to give you a "what is tort law?" Report. We are honored to invite my school teacher Zhu Jingwen, Feng Yujun teacher as discussant. Attend the lecture today and my teacher Sun Guohua, miss Zhang Shuguang, miss Yang Xiaoqing, let us all the teachers to express our warm welcome!

In this report we have expected, with warm applause to express, below please Mr. Wang began to report today!

Speaker: Good evening fellow teachers, fellow schoolmates, everybody! Thank you for your participation in the forum today, want to explore "what" is tort law problems and you today.

The law of torts is what problem, first of all related to the understanding of rule of law. We may have different understandings of the concept of the rule by law, but I understand that, the basic connotation of rule of law is to limit the public authority, the protection of the private rights, specifically why so to sum up, here I will not discussed. But the tort law simply is to protect private rights law. Is in the course of making tort law of our country, it is also an important measure to ensure privacy. However, in the civil law tradition of continental law countries, the law of torts is in debt as part of debt law provisions of the content, and some time ago we are discussing whether the tort law should be independently compiled with different. We formulate the tort law itself is the traditional national debt law system, a major breakthrough. Making tort law alone also showed a distinct characteristic of the system the civil code of China for Chinese actual and future oriented display. Separate establishment and as a separate part of tort law, can be regarded as a summary of our civil legislation and judicial practice experience of system, but also to adapt to an important measure to protect citizen's personal rights and property rights, enforce the rule of law. We have just said the important law of tort law is to protect private rights, if we so to tort law a definition, it should be said that the basic functions can be summarized out of tort law, but there still is very general, it does not reflect the unique characteristics and attributes of tort law in the civil law. Because in addition to the tort law, property law, personality right law has the attribute of private rights, so before starting the "what is tort law, the tort law?" We first need to answer the question. If the problem is not resolved, the basic problem of tort law adjustment object, content, system and so cannot be determined. So this problem appears to be simple, but very complex. The problem involves the basic tort law and rationality. For this problem, I think from the following six aspects to discuss.

The first question, what is the right law or tort law remedies?

We say, tort law is to protect the private rights, but the tort law not recognized and create rights law, in this sense, it is not the right method. What is tort law? First of all, it is to provide relief act in violation of the rights and legal interests of the case, it is the protection of private rights through the relief methods provide the private rights. Because tort law and other laws, it is a kind of remedy, it adjusts in violation of the rights situation whether relief as well as how to relief, in this sense, the tort law for adjusting the rights have been infringed and the formation of social relations, it is the core of the solution for the protection of the rights and interests which. Tort law must be raised after the infringement consequence, can play the function of adjusting social relations. In this sense, many scholars think, tort law is a kind of ex post facto laws, is the social relations of the second adjustment. Tort law itself as a remedy can not take the initiative to intervene in certain social relations to go inside, in other words, the tort law is subject to infringement of rights after the formation of social relations, which is the core of solving in violation of the rights of the case should be how to remedy the problem.

We say, the tort law now its function is expanded, so many scholars also said that tort law has the right to create functions, but this creation is usually after the judge has happened in the case of tort, he wants some interests form the right to have no special protection, which has become a rights. For example, the right of privacy is formed, the first law on privacy, no rules, but by a large number of cases to its protection as interest, then gradually in the law as a right. The right of privacy in the law, indicates the evolution process of rights. So, can say the tort law created right is actually formed in the protection of the interests of. We have to prevent violations of the function of tort law, but the prevention function is also derived. Only in the specific protection of rights and interests, tort law can embody the prevention function.

Because of the law of torts is relief method, it determines that we in tort law making process, different characteristics in many aspects to demonstrate and develop the right method has. For example, tort law in the content can not take the initiative to identify and provisions of one category of rights, also can not be directly specified range, some rights and the exercise of the right of way. Tort law can't even include the provision of conflict rules in the exercise of rights in the exercise of rights, such as right to exercise often conflict between various right. The settlement of conflict of rights these rules nor the tort law, but should be in the right method as it is right, personality right and so on these legal provisions. It is because of the law of torts is relief law, tort law so involves many important rule we should also in the formulation of tort law to seriously consider, consider it Is it right? Should as a basic rule of law of tort. Which I emphasize one issue in particular, is about the punitive damages the rules. The so-called punitive compensation actually refers to the court or the judge at the trial for the case and judgment than the actual damages, the compensation function is mainly to carry out acts of punishment, sanctions. For example, in USA McDonald's restaurant, there is a time when the old lady drink Coffee is Coffee scald later sued to the court, McDonald's. The final court decision McDonald's compensation for the old lady to $five hundred thousand in damages. Many people do not understand, think so minor burns to court such compensation decision? It also triggered some discussion. Because punitive damages are primarily have been widely used in the America, in European countries, especially the countries of continent law tradition rarely. The recent European Tort Law discuss a few times, a hot issue of tort law is that Is it right? Should introduce the punitive compensation. Recently many scholars call for, the punitive damages into the tort law, there formed two completely different ideas. In favor of the opinion that, in the modern society polarization more serious cases, the punitive compensation is an important measure for prevention and education function imposed sanctions on wealthy people to fully embody the act of tort law. Why do you understand? As we all know, under normal circumstances, the general ways of compensation for damage and can not form an effective containment of human behavior, but only with the help of the punitive compensation system to realize this function. For example, I give you one hundred yuan worth of watch broke, if I pay you one hundred yuan, such compensation, actually is the reflection of a trading rule. From the point of view of economics, this compensation equal to I spent one hundred dollars in compensation to buy back I caused $one hundred damage to you, this is actually a transaction. This damage is a basic principle of civil law, because it embodies as civil law based trading rules, reflecting the exchange of equal value and fair such an inherent need. But such a compensation in the two stage differentiation is very serious, for those rich people such compensation, not to him a deterrent function, because he has money, so I give you caused $one hundred damage, I pay you out, so he didn't care. What will cause much damage to you. Many scholars have raised strong criticism, that the compensation system for the rich and in some cases may be provided for violating the rights of others. That is the deeper cause why implement the punitive compensation. If you have a punitive damages, in fact this compensation is to achieve effective degree of rich punishment. Punishment to what degree? I think, this kind of punishment amount to let people feel sad when. In this way, punitive damages can play the role of warning, prevention. But the opposition think, this rule with the civil law principle of equality is contradictory. But I don't think so, because the civil legal relationship is relative, party rights, interest, corresponding to the other party shall bear the obligation or bear the burden. Such a correspondence or correspondence in fact is largely reflect the trading rules, such a situation actually on the punitive compensation, when the judge's decision to pay $five hundred thousand, probably for McDonald's to feel unfair in this case. But if in turn thought, this also accords with the principle of equality of civil law. To see the McDonald's one day how much money? If you don't pay $five hundred thousand for only fifty, McDonald's did not care, only the damages to $five hundred thousand will cause the attention of McDonald's. Therefore, the compensation of five hundred thousand may be necessary to it. But the problem appears in, because the civil legal relationship with the corresponding, a party shall bear the obligation or responsibility, the other party Is it right? Should enjoy the corresponding rights? Many scholars have such doubt, McDonald's should assume $five hundred thousand in damages, but the old lady as the victim Is it right? Should enjoy the right to compensation for five hundred thousand dollars? This form of punitive damages the fairness of a question. Fundamentally, it destroys the transaction rule. There are scholars raised the question, is the essence of tort law is a remedy, but this relief must be an equitable remedy, tort law itself is not a punitive laws, and law is not a punishment, punishment, punishment is the responsibility borne by power law. If the introduction of punitive such rules of tort law, tort law and criminal law relationship will be confused, confusion of its properties. This problem is still controversial in tort law, when we are establishing the account of this problem, most scholars think, punitive damages may not as a general form of liability provisions in tort law, but as an exceptional case Is it right? Can consider, have yet to be further explored.

The tort law is the relief law, relationship and the boundaries between the rights we can easily distinguish tort law and property law, intellectual property law, personality right law. Of course, although the distinction between rights and remedies are obvious, but their relationship is very close, because the right of tort law is the premise and basis to exist, only the right law recognizes the rights, tort law on the rights can make corresponding remedy. The common law of a motto, walk in front of the right relief. Because they have no such statutes, nor the declaration of rights, only through the relief means to protect rights. But we in the written law on rights of publicity cases, tort method can give relief. At this point, we say the right law in fact is the basis of tort law, law of rights recognizes the right type, content, way of exercise, clear rules of the people, and to provide relief of tort law. We say that the confirmation of the right itself is the definition of the behavior of people free, because free check to rights, free people's behavior is the biggest to the rights of others. So, in this sense, law of rights is a rule of conduct, law of rights is to act. But the tort law as a remedy, the applicable object is more of the judge, in the case of happened by judge according to the tort law to decide Is it right? Should remedy or how to remedy. In this sense, the tort law is mainly a referee, is provided by the rules.