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小宝日记

——一个消保主义者的生活与故事

 
 
 

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这是“消保主义者”王小宝的博客。“小宝”,是“消保”(消费者权益保护)的谐音。王小宝本科学习商品检验,后改修法学,获得法学博士,天府大学法学院教授。王小宝对侵害消费者权益的行为疾恶如仇,主张依法维护消费者权利。

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Prof. Green's Introduction to Zhu WANG's Research on Apportionment of Tort Liability  

2010-08-05 23:11:14|  分类: 学术著作 |  标签: |举报 |字号 订阅

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Introduction

Michael D. Green*

 

Any system of tort law must confront and resolve the question of how a victim’s contribution to the injury will be treated. Related conduct, often termed “assumption of risk” is subject to the same inquiry. A tort system must also address the matter of when multiple tortfeasors cause the harm how liability will be allocated among them. In addition, insolvency of one or more tortfeasors is unfortunate but inevitable, and how the risk that a tortfeasor is unable to pay his or her share of the liability is another decision point for any tort system. If apportionment is to occur, either between victim and tortfeasor(s) or among multiple tortfeasors, the basis for such apportionment must be determined. Consideration must be had of the whether apportionment should be same for all bases of liability–fault based and strict liability, with additional consideration among faulty parties as to whether those intentionally causing harm should distinguished for apportionment purposes. Settlements are inevitable and, most often, desirable, but they add another layer of concern for apportionment rules. Finally, in any tort system based on causation of harm, the role of causation in apportioning liability among the parties and its relationship with other methods for apportioning require resolution. At the same time, account must be had when there is causal uncertainty, i.e., the extent of harm caused by each party is not susceptible of convincing proof.

 

These are difficult, subtle, and complicated issues, which in the United States have required decades to sort out, even after moving from a rule that a victim’s contributory fault barred a claim to a rule that permitted partial recovery. I had the honor of participating in the American Law Institute’s efforts to resolve these issues on a fair and efficient manner in the Restatement (Third) of Torts, and I know how complicated and controversial these matters are.

 

In this book, Zhu Wang comprehensively addresses all of these matters with care, analysis, attention to theory, and concern for consistency. He has carefully researched apportionment schemes in several other torts systems, studied and applied the two predominant theoretical constructs informing tort law: instrumentalism as a purposeful agent for social welfare and corrective justice as providing rules for adjusting losses caused by the wrongdoing of one actor to another. At the same time, as a native Chinese, he is cognizant of and sensitive to the long history of Chinese law within which any tort law and apportionment of liability rules must fit. This is a magnificent achievement, which I hope will benefit the current efforts to draft a modern Chinese Civil Code addressing tort law.



*  Professor of Law, Bess and Walter Williams Distinguished Chair of Wake Forest School of Law, Reporter of Restatement of the Law, Third, Torts: Apportionment of Liability & Liability for Physical and Emotional Harm.

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