Tort,Insurance and Ideology: Further Thoughts

This article explores the impact of insurance arrangements on the development of the law of obligations. It is accepted orthodoxy that the existence or otherwise of a duty of care in tort should be determined independently of the parties' underlying insurance arrangements. This article suggests that the traditional analysis is of limited value only, in that it fails to take full account of contractual arrangements which rest upon risk allocation backed by insurance; of the circumstances in which duties of care may arise; and of the relevance of insurance to the determination of the standard of care and causation principles. It is further suggested that insurance has a much greater part to play in the spreading of losses arising out of private suits than has to date been fully appreciated.     

Tort, Insurance and Incoherence

Some commentators have doubted whether, as is generally believed, liability insurance has had a significant expansionary effect on the law of tort. This article contends that the common assumption is, indeed, correct, and the crucial influence of insurance is clearly seen in the recent cases of Vowles v Evans and Gwilliam v West Herts NHS Trust . Once this has been acknowledged, the consequent radical incoherence in the basis of tort law needs to be confronted. The argument here is that only through faithful adherence to principles of individual responsibility and corrective justice, inherent as these are within the structure of tort law, can we hope to preserve coherence in the law of tort.     

风险社会下的大规模侵权与责任保险的适用

人类自身活动已成为现代社会风险的根本性来源,大规模侵权是风险社会的极端表现,传统侵权责任法的单一赔偿机制已不足以救助大规模侵权中的众多受害者,将责任保险运用于大规模侵权损害救济中,对于维护社会经济秩序稳定,构建和谐社会具有重要意义。大规模侵权责任保险的构建应在模式选择、责任保险范围、责任限额、保险费率以及风险防范等问题上进行合理设计。     

环境侵权法律制度对环境责任保险的影响

环境侵权责任风险是环境责任保险产生的前提和基础。环境责任法律的具体制度安排及其执行,对环境责任风险的大小及其可预测程度产生了重大影响。我国现有环境侵权法律存在因果关系证明严苛、赔偿制度不健全、公益诉讼制度缺乏以及法律执行不力等缺陷,致使环境污染企业因侵权责任风险太小而普遍缺乏购买责任保险的内在动力,严重制约着环境责任保险制度的发展。     

Market Processes, Standardisation, and Tort Law

Private standards play a decisive role in tort law and in administrative law. Although they seem to be a perfect tool to achieve the goal of European integration, they tend to substitute democratic legitimacy with uncontrolled private governance. The loss of democratic control is accentuated by the failure of markets to provide sufficient incentives for standardising organisations to behave in a non-opportunistic manner. The dangers of cartelisation and oligopolistic behaviour are obvious. The approach to overcome these deficits is complex: on the one hand, an institutional governance of private organisations is necessary to incorporate third party interests in the process of enacting private standards; on the other hand, the legal effects of private standards have to be restricted to mere assumptions dependent on the democratic quality of their enacting process. The problem of democratic legitimacy is aggravated by the parallel substitution of state authorities' control by means of private certification organisations which control only the management procedures of firms. As these management systems are difficult to be evaluate, the opportunities for opportunistic behaviour amongst firms and certifiers increases. Moreover, markets themselves fail to discipline certifiers by virtue of a lack of observable factors which might indicate the quality of certification. Tort law, too, cannot fulfil that gap by providing liability for damages caused by undue certifications because tort law suffers from a variety of shortcomings such as missing protection of public goods and difficult assessments of causation linkages. In sum, the author argues for a mixture of market incentives, tort law and administrative law. Each sector must fill in the gaps left by the others.     

The Deterrent Effects of Automobile Insurance and Tort Law: A Survey of the Empirical Literature

One of the central issues in the debate concerning no-fault insurance is the question of whether tort damages can deter accidents. Although a large, scientific literature exists which could cast light on this question, the participants in the debate have made little reference to that literature. In an attempt to rectify this omission, the following paper surveys a large segment of the statistical results, and comments on the implications which those results have for the no- fault debate.     

公司侵权能力与侵权责任探讨

确定由公司承担侵权责任的两个关键性的问题,一是公司侵权行为的构成要件,即认定公司侵权行为的标准,以区分公司的侵权行为和对外代表公司的自然人的个人侵权行为,从而确定责任的最终承担者;二是如何科学地界定法人的责任和其内部成员的责任,以使责任主体适格,使真正的责任人受到追究,从而维护公司的利益。     

论侵权法中的价值平衡思想——权利保护与行为自由的平衡

权利保护与行为自由是侵权法中的基本矛盾,也是侵权法的二元价值目标。侵权法中的归责原则、因果关系、惩罚性赔偿等制度均体现了权利保护与行为自由的平衡思想。我国《侵权责任法》在总体上也体现了这一平衡思想,但由于负担了超出其功能范围的社会救济职能,其在个别制度的设计上仍有违权利保护与行为自由的平衡精神。     

侵权责任、损害赔偿责任与知识产权保护

一　从一部侵权赔偿责任的书谈起张新宝教授翻译的德国冯·巴尔所著《欧洲比较侵权行为法》① 一书 ,是了解与研究外国这一领域法学的一部不可多得的好书。其作者是西欧侵权法的权威之一 ;其译者 ,则是中国侵权法领域的权威之一。该书几乎覆盖了西欧所有重要国家的侵权损害赔偿法律及欧盟这一领域法律一体化的进程。十多年前 ,另一部由B .S .Matkesinis著的《德国比较侵权损害赔偿法》 ,② 纵然也是同领域的一部优秀著作 ,但其一是没有中文译本 ,二是主要只对法、德两国的侵权损害赔偿作了比较研究 ,所涉及面要小得多了。不过把这部权威之…     

论“因侵权而犯罪”与“因犯罪而侵权”

刑事侵权具备"刑事责任"、"侵权责任"双重责任属性,由于刑、民责任在发展进程、互动的路径及效果上的不同,可分化为"因侵权而犯罪"与"因犯罪而侵权",即刑事侵权二分论。"因侵权而犯罪"具有民事责任倾向性,"因犯罪而侵权"具有刑事责任倾向性,解决刑事侵权责任问题须兼顾侵权责任法与刑事法的正义要求。刑民二分论有坚实的法律基础,符合法律价值基础的要求,当刑事责任与侵权责任进行内容接轨与功能互补时,可在实践中实现预期的价值目标和社会效益的最大化。     

Safety,Regulation and Tort: Fault in Context

The relationship between tort and regulation is dense and complicated. This paper examines diverse approaches to one small element of this relationship: the relationship between regulatory norms and the standard of care in personal injury cases. The lack of clear rules governing that interaction is not surprising: we would never expect the courts to give up the authority (or abdicate the responsibility) to generate private law norms; on the other hand, nor would we expect them to ignore the potential authority and legitimacy of external norms. The strength of external standards is best identified by close scrutiny of the regulation itself. The varying authority of external norms in a private law forum requires engagement with the process by which the external norms were reached. Who and what determined the ‘ought’ of regulation will provide greater insight into the ways in which it should inform the ‘ought’ of tort.     

The Alien Tort Statute: Blackstone and Criminal/Tort Law Hybridities

The importation of criminal law concepts into the area of civillaw is attracting increasing interest. The United States’Alien Tort Statute (ATS), though principally known for enablinginternational human rights suits to be filed in the domesticcourts of the United States, also imports criminal law notionsinto civil litigation. This article explores the hybrid natureof the ATS in the context of the development of internationallaw, and raises the question of whether ‘grandeur’is a principal reason for the ATS’ existence.     

评《侵权责任法》中的医疗损害责任

分析医疗损害责任纳入《侵权责任法》积极和消极意义的基础上,阐述了医疗纠纷的法律适用,并从解构医患法律关系入手,提出了坚持医疗纠纷中对医方宽容与对患者救济并行。构建医患法律关系的立法趋势。     

Disability,Rights, and the Construction of Sexuality in Tort Claims

This study empirically investigates how courts define sexuality of disabled persons in the absence of a formal right to sexuality. The focus of the study is tort law, a field ungoverned by direct disability rights legislation, assuming that tort law is the law of disablement as it concerns the transformative process of becoming disabled. The study investigates the types of damages courts have awarded for harm to sexual functioning, inquiring to whom and under what conditions have they been awarded. Additionally, it examines the discourse that characterizes each type of damages, and the legal, social, medical, and healthcare policy developments that have affected courts' rhetoric and reasoning. Our findings reveal shifting trends in scale, content, and inclusiveness of beneficiaries in terms of gender and age. Over time, courts have adopted a more hopeful and dynamic approach to disabled persons' sexuality while remaining within an individual‐medical framework. We suggest that these shifting trends can be linked to the slow diffusion of the social‐affirmative approach to disability, the limits of tort law as a field, and the role of healthcare policy in shaping the landscape of tort claims.