Theories of Tort LawA tort is a legal wrong. Tort law is a branch of the civil law; the other main branches are contract and property law. Whereas in criminal law the plaintiff is always the state and the defendant, if found guilty of a crime, is punished by the state, in civil law the dispute is typically between private parties (though the government can also sue and be sued). In the case of torts, the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is either directed by the court to pay damages to the plaintiff (the usual remedy) or else to desist from the wrongful activity (so-called "injunctive relief"). Examples include intentional torts such as battery, defamation, and invasion of privacy and unintentional torts such as negligence. Most contemporary tort theory focuses on the legal consequences of accidents, where the relevant forms of liability are negligence and strict liability. This entry likewise focuses on these forms of liability.Misfortune happens and when it does its victims incur costs. Those costs can remain the burden of victims or they can be shifted to others. Sometimes the costs are borne by everyone (within a particular group or political community). Still other times those costs are borne by particular individuals, namely, those who are responsible for having caused them. The question is: Who is to bear the costs of life's misfortunes: victims, the community as a whole, those who are responsible for them, or someone else entirely? How are we to answer this question? What principles ought to guide the decision, and what institutions ought we create to realize these principles in practice?1. Introduction2. The Difference Between Fault and Strict Liability3. Framework for a Theory of Tort Law4. Theories of Torts: Economic Analysis5. Theories of Torts: Corrective JusticeBibliographyOther Internet ResourcesRelated Entries--------------------------------------------------------------------------------1. IntroductionLet's set aside for the moment the costs of misfortune that are borne collectively and distributed throughout the community through tax systems that support, for example, social welfare and safety net programs more generally. Of those that remain, the question is whether the costs are to be borne by victims or some other particular person or persons. Tort law is one of the institutions political communities develop in order to allow victims the opportunity to shift the costs that befall them to others. Insurance is another such institution. Many individuals purchase ‘first party' insurance to protect themselves against having to shoulder the full costs of some misfortunes that may befall them and to guard against others. Private health insurance provides a good example of first party insurance against risk to oneself. The contrast is with third party insurance — a contract into which one enters to guard against shouldering the full costs of misfortune one imposes on others for which one is held by law to be responsible.Tort law and insurance are connected in the following way. Tort law establishes conditions under which victims can shift at least some of the costs they incur to others. All individuals realize that they may be subject to a judgment against them in torts and so many buy third party insurance to protect them from bearing the full costs of those judgments. In some jurisdictions purchasing third party insurance is mandatory. All individuals are likewise aware that they may be victims of another's actions and may not be able to secure a favorable judgment against their injurers — or they not deem it worth the effort to pursue redress through the courts. So many of them buy first party insurance to guard against some of the costs they would otherwise have to shoulder completely.It is important to note that tort law provides an avenue of redress, not a guarantee of recovery. The victim must determine whether pursuing a remedy through torts is worth the effort and cost. Indeed, as an empirical matter most simply grin and bear the loss then move on. When a victim chooses the form of redress provided by tort law she is given the opportunity to shift her losses to another — provided the conditions the law sets out for doing so have been met. The conditions for shifting losses from victim-plaintiffs to injurer-defendants are expressed in ‘liability rules'. The law of torts distinguishes between two basic kinds of rules: those that impose ‘fault' liability and those that impose ‘strict' liability. In the next section we will characterize the difference between these liability rules precisely, but for now it may be helpful to illustrate the underlying distinction in familiar terms that do notrely on the technicalities of the law.Suppose I made a mess of some sort on my property, then I turned to you and presented you with the bill for cleaning it up. In the absence of some prior agreement we might have made this would seem rather odd. After all, it is my mess, not yours. The burden, accordingly, is mine, not yours, to discharge. Now suppose that instead of making a mess on my property and presenting you with the bill, I simply move the mess I made to your property (or I make the mess on your property from the get-go), and simply walk away claiming the cleanup problem is now yours. If it was inappropriate of me to present you with the bill for the mess I made on my property, it hardly seems that I have improved matters by placing my mess on your property instead. It is, after all, my mess, and the responsibility of cleaning it up is mine. This is the underlying thought behind strict liability. One has a duty to clean up one's messes, and that responsibility does not appear to depend on how hard one has tried not to make a mess in the first place.On the other hand, unless each of us stays in his respective dwelling, we are bound to make the occasional mess in each other's lives. You would not be justified in demanding of me that I never bump into you or make something of a mess in your life, nor would I be justified in making similar demands of you. What I can demand of you is that you take my interests into account and moderate your behavior accordingly. You need to take reasonable precautions not to harm me; you need to avoid being reckless with respect to my interests. And I am obligated to treat you similarly. That is, what we have a right to demand of one another is that we behave responsibly with respect to the other's interests. This is the underlying thought behind fault liability.The question is which is the appropriate standard of liability in torts? Most tort theorists believe that we cannot answer that question without first answering another —namely, what are the goals or aims of tort law? The conditions of liability in torts justify imposing a duty of repair on those who satisfy them only if (a) the duties so imposed are the ones best suited to help tort law meet its goals, and (b) the goals are themselves justified. The primary focus of tort theory has been to identify the goals of tort law and to justify them as legitimate aims for the law to pursue. Once the goals are identified and justified, tort theory is then a matter of exploring the extent to which the conditions of liability in torts are appropriate instruments for pursuing them.Put this way, tort theory is largely a normative activity that appears to eschew explanatory projects. Whereas explanatory projects in law can be pursued without raising justificatory questions, it is less clear that justificatory projects of this sort can be pursued completely independently of basic explanatory ones. Consider the claim that the goal of tort law is deterrence. The claim is not that deterrence is a legitimate goal for some logically possible tort law. The claim is that deterrence, for example, is the goal of this or that system of tort law; and making out such a claim requires showing that the law makes sense as the sort of thing that could pursue that goal or aim. That requires in turn establishing that various features of existing or idealized practice makes sense in the light of the goal one attributes to it. In that sense, the normative project requires that we address certain explanatory or conceptual questions. And so part of making the case that say, the efficient reduction of accident costs is the goal of tort law rests on showing that fundamental features of actual tort practice are best explained by seeing them in the light of efficiency.As noted above tort law has both strict and fault liability rules. Thus, we have at least two projects. The first project is to distinguish between fault and strict liability as conditions of liability in torts. The second is to explore the extent to which the central features of tort law —including the rules of fault and strict liability —can be explained by the putative goals of tort law.2. The Difference between Fault and Strict LiabilityThere are three basic elements in a tort: wrong, harm and an appropriate relationship between the injurer's wrong and the harm to the victim. To harm someone is to set back a legitimate interest of hers. The law does not recognize all harms as grounds for a claim in torts. If you beat me in tennis or in competition for the affections of another, I may be harmed, and you may be the cause of it, but I have no claim in torts to repair for my broken heart or my bruised ego. Even if the interests harmed are protected by the law, claims to repair for the losses one imposes on others require more than risk and harm; they require a wrong —the violation of a duty not to harm or not to impose risks of a certain kind on others. You have no duty not to harm me through competition in business or the affections of another, and so in harming me you do not thereby wrong me. There is no overstating the importance of the idea of a wrong — or of a breach of duty — to tort law.The central idea in tort law is that liability is based not so much on acting badly or wrongfully, but on committing a wrong. At the same time, a victim's claim to recover for harm to her depends on the wrong the injurer has committed being a wrong to her. It is not enough that the injurer has committed a wrong and that she (the victim) has suffered as a consequence. The defendant's liability to the victim and the victim's claim against the defendant depend on the defendant's having breached a duty of care to the victim.Just as harm without wrong is no tort, wrongs without harms are typically not torts either. Suppose for a moment that every motorist has a duty to exercise reasonable care in driving his or her car, and that the intended beneficiaries of the duty include all the pedestrians and other drivers who might be put at risk by one's failure to drive with adequate care. Now imagine two people who drive recklessly and in so doing breach the duty we suppose they have, but that one motorist causes damage whereas the other escapes injuring anyone. By hypothesis, both have breached a duty to those whose security is put at risk, and in doing so both have committed wrongs. Only one driver harms someone as a result of the wrongs he commits and thus only he subjects himself to tort liability.So torts require both wrong and, in most cases, harm. A notable exception to the harm requirement is the case in which injunctive relief is awarded in order to prevent harm that is virtually certain but yet to occur. As a general rule though torts require both wrongs and harms. They require more as well: for liability in torts can be imposed only if the harm has been caused in the appropriate way by the wrong. A's wrong must be what the law calls the ‘pro ximate' cause of B's harm.These are the elements of a tort, but the question is how are they represented in the context of the rules of strict and fault liability. On the conventional view, the difference between fault and strict liability is that in strict liability, but not in fault liability, a defendant can be liable even if he has done nothing wrong. The common understanding, then, is that strict liability is liability without wrong, and fault liability alone is liability based on the injurer's wrong. But then the conventional view seems incompatible with the claim that all torts involve wrongs.There is a distinction between wrongs and wrongdoings — a difference between committing a wrong and acting wrongfully. To act wrongfully is to act without justification or excuse. Wrongdoing reflects badly on an agent for his actions. On the other hand, to commit a wrong is to breach a duty, to invade another's right. One can breach a duty for good reason, with adequate justification, or under excusing conditions. Rights in other words can be invaded innocently (or justifiably) on the one hand, or wrongfully (or unjustifiably) on the other. This distinction is sometimes expressed in terms of the difference between rights-infringements and rights-violations. Whether my action invades your right is one thing; whether, if it does, the action reflects poorly or favorably on me is another. Let's apply this distinction to the conventional understanding of the difference between strict and fault liability. When liability is imposed strictly, the question is whether the defendant has invaded the plaintiff's right. A plaintiff under strict liability does not have to establish the fault of the defendant, though a judgment of strict liability does not necessarily mean that the defendant has acted innocently or justifiably. According to the conventional view, under fault liability, the plaintiff has to establish not only that he was wronged by the defendant but that in doing so the defendant acted wrongfully, that is, without justification or excuse.But this way of explaining the distinction between fault and strict liability leads us even further astray. For if the victim's being wronged by the defendant is adequate to ground his claim to repair (other things being equal) in some cases, why is it not enough in all cases? Concern for the character of the defendant's action may be appropriate to the question whether, in addition to incurring a duty to make his victims whole, he should be punished, held up to ridicule or banished from the community. Under strict liability, the breach of the duty is what is relevant to the duty to repair. In other words, if a practice of strict liability is justified at all, then the duty to make repair cannot depend on whether the injurer has acted justifiably or not. If that is so, why should the duty ofrepair in fault liability require more than it does in strict liability? When fault is treated as an element of a tort distinct from the breach of duty, either fault liability requires too much or strict liability too little.The conventional understanding of the difference between fault and strict liability goes astray precisely because it distinguishes the breach of the duty from the fault requirement. The better view is that the difference between fault and strict liability is a difference in the content of the underlying duty of care. To see this, consider the cases of blasting, on the one hand, and motoring on the other. In a case like blasting —an activity traditionally falling under strict liability —the blaster has a duty-not-to-harm-by-blasting. This is the content of the duty of care blasters owe those whom their blasting puts in danger. On the other hand, in the case of motoring — a familiar example of an activity covered fault liability —the motorist is thought to have a duty-not-to-harm-by-faultily-motoring. That these duties have different content is illustrated by their respective success and failure conditions. A blaster fails to discharge his duty when his blasting, regardless of the care he takes, injures someone to whom he owes the duty. A motorist fails to discharge his duty when he harms another negligently, recklessly or intentionally through his driving. The blaster can satisfy his obligations only by not harming another. The motorist can meet hers either by not harming anyone or, in the event she harms someone, by not having done so negligently, recklessly or intentionally. And this is just another way of saying that the contents of the respective duties differ. The fault requirement is thus an aspect of the underlying duty, not a reflection on the character of the defendant's action.The force the interests of others imposes on our duty to moderate our behavior varies with the circumstances. Sometimes, the likelihood or magnitude of harm to others is so great that the duty we have to others is not to harm them as a result of the actions we choose to undertake. At other times, the balance of interests indicates that we need to take reasonable precautions to guard against harm to others, and no more. Understood in this way, the problem is familiar and not in the least unique to tort law. It is a matter of ordinary morality that the content of our duties to others varies as a consequence of a range of familiar factors. Noting this does not solve the problem of telling us why sometimes the duty is strict and other times it demands only reasonable care. But the difference is that between points on a continuum, and so the stark contrasts that are implied in the conventional view are inapt.3. Framework for a Theory of Tort LawIt is customary in tort theory to distinguish substantive from structural and procedural aspects of tort law. The rules of strict and fault liability are substantive features of tort law. The bilateral structure of a tort suit — the fact that victims sue those they identify as their injurers and do not instead seek repair from a common pool of resources (as is the case in New Zealand) is a structural feature of our tort law. The fact that the burden of bringing forward a claim and of making the prima facie case falls to the plaintiff is a procedural feature of tort law, and so on. We have already identified the most basic substantive concern of a tort theory, and that is to justify, insofar as possible, the rules of fault and strict liability. It is not the only substantive feature of the practice that has drawn the attention of theorists, as the following summary of substantive concerns helps to make clear.Mischief, even great mischief, that does not materialize into harm, may be wrongful, but it is not tortuous. Similarly, a reckless and irresponsible defendant who is fortunate to escape causing major damage to others, is only liable for the minor damages he causes. This in stark contrast to the generally focused and attentive actor whose minor mischief occasions a great deal of misfortune. The general principle of tort is that both are liable for the full costs of the harms their conduct has occasioned. Yet, the burdens they face bear no relationship to the degree of their relative wrongdoing. Why should fortuity play so pervasive and powerful a role in tort law? A defendant judged liable in torts incurs a duty to make good the full costs of the harms that result from his wrong. The liability takes the form of the imposition of a duty of repair. The defendant, however, is often able to discharge his duty through an insurance mechanism. The contrast with the criminal law can be illuminating. It is unimaginable that we would permit individuals to purchase insurance against the likelihood of criminal liability. What explains the difference?4. Theories of Torts: Economic AnalysisCompeting theories of tort law offer accounts of these various features oftort law. The degree to which they illuminate our practice is relative to their perspective on legal practice It is helpful to understand tort law through the lens of a judge deciding cases based on prior rulings and doctrine, from the perspective of potential litigants seeking the vindication of claims, and from the perspective of the legal reformer trying to formulate the best rules for imposing liability. Economic analysis of law is unconvincing if its aim is to illuminate the law from the perspective of either judge or litigant. It is much more plausible when viewed through the lens of a particular kind of legal reformer. We will get the most from economic analysis if we remind ourselves that the economic analyst is asking questions of the following sort: what substantive liability rules are most likely to have the greatest impact on reducing the incidence of accidents at the lowest cost? What procedural rules at a trial are most likely to induce those with the most relevant information to reveal it, or most likely to lead to optimal investments in information or safety; and so on. These are the questions of a reformer less interested in the actual state of tort law than in how the law can be improved.The economic approach to tort law, like the economic approach to law more generally, attributes a particular goal to the law: namely, efficiency. In the case of tort law, efficiency is understood as optimal cost reduction. The aim of tort law is to minimize the sum of the costs of accidents and the costs of avoiding them. This is to be accomplished in part by creating a system of incentives adequate to induce individuals to invest appropriately in determining what the optimal precautions are and to take them.The distinguishing feature of economic analysis is the account it provides of fault: the formula it offers for determining whether an actor has adequately taken into account the interests of others. In general, to be at fault in torts is to fail to take others interests appropriately into account and to adjust one's conduct accordingly. Reasonable persons take the interests of others appropriately into account and adjust their behavior accordingly. To be at fault is to fail to behave as would a reasonable person of ordinary prudence. It is a failure to accord others the appropriate level of care to guard against harming their interests.Economic analysts focus primarily on the concept of negligence. Negligence is the failure to take adequate care and adequate care consists in taking cost-justified precautions. Precautions are cost-justified whenever their cost is less than the costs of the harm risked (by not taking precautions) discounted by the probability of the harm's occurrence. Once we understand negligence as the failure to take cost-justified precautions we need to ask what justifies imposing liability on those who have failed to take appropriate precautions.From an economic point of view, the costs of the accident for which one is responsible are sunk. There is nothing to be done about them. All that we can do is shift the costs from the victim upon whom they have fallen to someone else. From the economic point of view, such a decision must be based on the impact of cost imposition on the incentives of individuals to invest appropriately in safety. Individuals ought to bear sunk costs only if imposing those costs on them will have the desired impact on the reduction of costs in the future. The responsibility relationship is backward looking; the cost reduction aim is forward looking. It may turn out that having the property of being responsible for a ham may be reliably connected to the property of being an effective cost-avoider. Even in that case, being responsible for a loss is not the ground of liability, but is instead a reliable indicator that the injurer possesses the property that is the ground of liability. Beyond that, if having the property of being responsible for a harm is a reliable indicator that one has the property of being a good cost-avoider (even of harms of the particular sort for which one is responsible), it does not follow, without more, that one should be held liable for the particular harm for which one is responsible. One could just as well be held to bear the costs of a similar injury, or one could be held to bear the costs adequate to induce investments in cost reduction — and those costs may or may not coincide with the costs associated with the harm for which one is responsible. So it cannot be part of an economic argument that the party who is at fault must pay for the costs of harms that are his fault because he is responsible for them. Rather, liability is imposed on those at fault in order to put in place the right incentives on the defendant and those similarly situated.If we assume that actors are fully rational and informed, imposing liability on those at fault will have the desired effect on others. Here's the argument. If we assume that agents are fully rational, then under the economicconception of rationality it follows that they will maximize benefits or minimize costs. If agents are fully informed, they know the costs of liability and the costs of precautions. Ex ante, all agents will choose the lesser of these costs. The relationship between precaution costs and potential liability based on fault is as follows. An agent will be at fault only if the costs of precautions are less than the costs of the harm discounted by the probability of occurrence. To avoid being at fault the rational agent takes the precautions, which, in addition, are the lesser costs he faces. If the costs of precautions exceed the cost of the harm discounted by the probability of its occurrence, then he will not take precautions, but then he will not be negligent either. Should harm to another result, he will not be required to shoulder the victim's costs. That will be for the victim to do (an important consequence of fault liability to which we shall return below.) So the rational and informed agent will take precautions whenever it would be efficient for him to do so, not otherwise.In contrast to fault, strict liability is imposed whether or not an agent ought to have taken precautions. Why might we want to hold someone liable who has in fact invested in cost-justified precautions? The economic answer to this puzzle in effect is that there is more than one way to skin a cat. Skinning a cat, in this context, amounts to inducing individuals to take cost-justified precautions.An agent subject to strict liability has to bear the full costs of his activities — the costs to him of engaging in it and the costs his engaging in it imposes on others. All the costs are his. The question he faces, then, is whether there is anything he might do to reduce the costs he faces. That depends on whether there are precautions he can take, their costs and their expected effectiveness. In other words, if the costs of precautions are less than the harms likely to occur discounted by the probability of their occurrence, then he will take the precautions. He does so because these costs are lower than those he would otherwise expect. Notice that those precautions are in fact the cost justified ones. And so under strict liability the rational and informed agent will also be induced to take all and only cost justified precautions. In this respect fault and strict liability give the same results. The only difference between the two is that under fault liability the costs of accidents not worth preventing are borne by victims, whereas under strict liability, those same costs are borne by injurers. In fault liability, the costs of accidents that are no one's fault are the burden of victims; in strict liability, they are the burden of injurers.If strict liability can induce efficient investments in safety, why would we have a rule of fault liability? If fault liability is capable of inducing individuals to take optimal precautions, why impose strict liability? The two rules have different distributional consequences. From the economic point of view, the distributional consequences are not important in their own right, but they can be important because of their impact on activity levels. The choice of strict or fault liability is in one sense a choice between making activities more or less expensive relative to each other. Take ranching and farming for example. A rule of strict liability imposed on ranchers for the damage their straying cows impose on corn crops makes ranching more expensive relative to farming. This means that even if, at any level of ranching and farming, both strict and fault liability could be efficient in reducing accidents at that level, a rule of strict liability will make ranching relatively more expensive and reduce the overall level of it (in relation to farming). This means more farming and more farming accidents and fewer ranching related accidents. And so on. If efficiency depends on activity levels, then fault and strict liability need not be equally efficient. Or put another way, because fault and strict liability have differential impacts on activity levels, they can be used differentially whenever appropriate to secure an efficient overall allocation of risks.The implications of fault and strict liability are more complicated once we distinguish between one and two party accidents. A one party accident is one in which in order optimally to reduce the probability of its occurrence only one of the parties to the accident need take appropriate precautions. In contrast, in a two party accident, securing the optimal reduction in the probability of the accident's occurrence requires that both parties take appropriate precautions. Setting aside the problem of activity levels, we can be taken to have shown that in the case of one party accidents both strict and fault liability can be efficient. The same is not true in the case of two party accidents, where strict liability is not efficient. In strict liability, the victim is always compensated his full damages and therefore has no incentive to invest in precautions, yet the situation requires him to do so.。
法律专业术语英文The legal profession is a highly specialized field that often requires the use of specialized terminology to effectively communicate ideas and concepts. Here are some common legal terms and their corresponding definitions:Jurisprudence: The study of law and its philosophy, emphasizing the principles and foundations underlying legal systems.Statutory law: The body of law created by legislative acts, such as statutes, laws, and regulations. Case law: The body of law created by court decisions, also known as common law. Constitution: The fundamental document that establishes a country's legal system and sets forth the rights and obligations of its citizens.Tort: A civil wrong committed against an individual that results in injury or loss.Contract: A legally enforceable agreement between two or more parties that creates obligations to perform or not perform certain acts.Criminal law: The body of law that establishes criminal offenses and the corresponding penalties for those offenses.Procedure: The formalities and procedures followed during the adjudication of legal disputes. Evidence: Information or documents admitted during a legal proceeding to prove or disprove a fact or allegation.Jury: A panel of citizens who hear evidence and arguments during a trial and render a verdict on the basis of the evidence presented.Pleading: The formal written statement of a party's case in a legal action, often filed with the court as part of the complaint or defense.Sentencing: The process of determining the punishment to be imposed on a defendant found guilty of a crime.Appellate court: A court that hears appeals from lower courts, reviewing the record of the case and deciding whether the lower court's ruling was correct.Bench trial: A trial held without a jury, where a judge hears evidence and renders a decision based on their discretion and legal precedent.These are just a few examples of legal terminology commonly used in the legal profession, both in the United States and abroad. Understanding legal terminology is crucial to effective communication between lawyers, judges, and other legal professionals, as well as to ensure comprehension of legal documents and court proceedings.。
论侵权责任优先原则——兼评《侵权责任法》第4条第二款之规定余中根【摘要】The article 4 clause two of tort liability law establishes tort liability priority principle, which has great significance to the maintenance of private rights. Tort liability priority essentially related to the competing issues among tort liability, administrative liability and criminal liability. The main reasons of establishing tort liability priority include : reflect the priority of private rights, realize the values of law, and maintain the market economic order and transaction security.%《侵权责任法》第4条第二款确立了侵权责任优先原则，这对于维护私人权利具有十分重要的意义。
侵权责任优先本质上涉及到侵权责任、行政责任和刑事责任之间的竞合问题。
确立侵权责任优先的原因主要有：体现私权优先、实现法的价值、维护市场经济秩序和交易安全等。
【期刊名称】《红河学院学报》【年(卷),期】2012(010)006【总页数】3页(P22-24)【关键词】侵权责任;《侵权责任法》;第4条;法律责任竞合【作者】余中根【作者单位】保山学院,云南保山678000【正文语种】中文【中图分类】D923《侵权责任法》第4条第二款规定：“因同一行为应当承担侵权责任和行政责任、刑事责任，侵权人的财产不足以支付的，先承担侵权责任。
