论共同侵权行为的判定及民事责任之承担-民商法学专业论文.docxVIP

II II Abstract The commonality is the most essential question and extremely pivotal criterion about the joint tort. There are three standpoints about commonality, the subjective joint theory, objective joint theory and compromise joint theory what is more rational. The compromise joint theory includes the subjective and objective criterions of commonality what are applied to different conditions, that is, the intentional commonality is preferential applied in general conditions and relevance in common is applied in special tort action. This criterion can correspond the joint tort to the whole system of tort law, differentiate joint tort and other several persons’ tort actions, reflect the requirements of fault principle what is the fundamental attribution principle in tort law to the joint tort, and balance the benefit between the behavior freedom and victims’ protection. Criterions for joint tort decide applicable scope of its civil liability. A reasonable criterion can provide a rational base for its joint liability and realize the positive values of it. But there are opposition opinions in theory what direct towards the traditional view that apply joint liability to joint tort. The foreign judicial practices also reflect the trend that civil liability of joint tort is developing to be separate liability. For our county, persisting the position of joint liability is up to the development trend of tort law that is strengthening protection for victims, is propitious to assist victims with getting compensation through lawsuits, and is also more in line with the need of our society reality. The purpose of theoretic research should realize the legal obligation by means of setting up relevant procedures. Joint liability is not a exception. Through the inherent necessary co-litigation mode, all infringers litigate together and the court solves the internal and external legal relation of joint liability. Eventually the content of judgment is implemented through flexible e