Realistic Dilemma and Rule Reconstruction of Judicial Application of Fair Liability
From Article 132 of the General Principles of Civil Law to Article 24 of the Tort Liability Law to Article 1186 of the Civ-il Code,Article 1186 of the Civil Code replaces the expression"in accordance with the actual situation"with"in accordance with the provisions of the law".Fair liability has gone through the legislative evolution from the general provisions to the resulting provisions.From the empirical analysis of the judicial application of fair liability,it can be seen that Article 1186 of the Civil Code is still facing the practical dilemma of judicial application.In the future,we should systematize and reconstruct the applica-tion rules of fair liability.Firstly,we should clarify the application conditions from the legislative purpose of Article 1186.The limited interpretation is adopted to clarify the main situations of Article 182(emergency risk avoidance),Article 183(voluntary felon-fighting),Article 1190(temporary loss of consciousness),Article 1192(provision of labor service)and Article 1254(throwing objects from high air)of the Civil Code,which are called"in accordance with the provisions of the law".At the same time,we should also leave flexible interpretation space for the application rules of fair liability,so as to ease the judicial applica-tion of fair liability.
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维普
