法律知识导读第九单元TortLaw课件

1、Unit 9 Tort Law侵权法第1页，共29页。Lead-in没有救济就没有权利，侵权法作为对权利的救济，无论是英美法系还是大陆法系，其都是整个民法的重要组成部分。侵权行为是指行为人由于过错侵害他人的财产、人身，依法应承担民事责任的行为；行为人虽无过错，但法律特别规定应对受害人承担民事责任的其它致害行为，也属侵权行为。侵权行为一般分为故意侵权行为和过失侵权行为。故意侵权是英美侵权法中最古老的诉因，构成故意侵权责任的要件包括：故意、行为和因果关系。过失侵权指一个人没有在法律所规定的以保护其他人免受不合理的伤害危险的法律义务范围内的行为，对其责任的认定取决于谨慎义务存在与否。第2页，共29页

2、。Tort Law -Tort law is the name given to a body of law that creates, and provides remedies for, civil wrongs that do not arise out of contractual duties.tort law defines what constitutes a legal injury, and establishes the circumstances under which one person may be held liable for anothers injury.第

3、3页，共29页。Theory and reform theory:Scholars and lawyers have identified different types of damages awarded by the courts: compensatory, aggravated and punitive. British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensati

4、on第4页，共29页。reform:Calls for reform of tort law come from diverse standpoints reflecting diverse theories of the objectives of the law.第5页，共29页。Words and Expressionstort (律) 民事侵权行为 contractual 契约的intentional act 故意行为negligence 疏忽；过失tortious （律）侵权行为的；侵权行为性质的；非法行为的intentional tort 故意侵权行为tort liability

5、侵权责任trespass 过失；罪过；侵入第6页，共29页。real property 不动产chattel （律）动产movable property 动产fiduciary duty 信托责任；信赖义务privacy tort 隐私侵权defamation 诽谤false imprisonment 非法监禁delict 犯罪；不法行为第7页，共29页。tortfeasor （律）犯侵权行为者punitive 刑法的；惩罚性的transaction costs 交易费；交易成本claimant （根据权利）提出要求者，原告solvent 有偿付能力的no-fault （汽车保险）不追究过失责

6、任的（均予赔偿的），(律)无责任的Command Paper 敕令书第8页，共29页。Notesintentional tort （故意侵权行为）: An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence tort pertains to a tort that simply results from the failure of the

7、tortfeasor to take sufficient care in fulfilling a duty owed.第9页，共29页。strict liability（严格赔偿责任）：Strict liability is a legal doctrine that makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of culpability (or fault in criminal law terms, which would norm

8、ally be expressed through a mens rea requirement. 第10页，共29页。fiduciary duty（信托责任）：The fiduciary duty is a legal relationship of confidence or trust between two or more parties, most commonly a fiduciary or trustee and a principal or beneficiary.第11页，共29页。Law of Obligations （债权法）:The Law of Obligation

9、s is one of the component private law elements of the civil law system.第12页，共29页。joint and several liability（连带责任）:Under joint and several liability, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort o

10、ut their respective proportions of liability and payment.第13页，共29页。punitive damages (惩罚性的损坏赔偿): Punitive damages (termed exemplary damages in the United Kingdom) are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursu

11、ing a course of action such as that which damaged the plaintiff. Punitive damages are often awarded where compensatory damages are deemed an inadequate remedy. 第14页，共29页。Categories of tortsDivisions:Negligence (dominant action)intentional torts.第15页，共29页。 Negligence:It include claims arising primari

12、ly from automobile accidents and personal injury accidents of many kinds, including clinical negligence.Product liability cases may also be considered negligence actions.第16页，共29页。The elements of negligence are: Duty of care Breach of that duty Breach being a proximate or not too remote a cause, in

13、law Breach causing harm in fact 第17页，共29页。intentional torts:Intentional torts may be certain torts arising out of the occupation or use of land, and false imprisonment as well as defamation.第18页，共29页。subcategories: tort(s) against the person (including assault, battery, false imprisonment, intention

14、al infliction of emotional distress, and fraud) property torts involve any intentional interference with the property rights of the claimant.第19页，共29页。Statutory tortsA statutory tort imposes duties on private or public parties, however they are created by the legislature, not the courts.(such as con

15、sumer protection)Statutory torts also spread across workplace health and safety laws and health and safety in food produce.第20页，共29页。NuisanceThe tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. Free market environ

16、mentalists would like to expand tort damage claims into pollution (i.e. toxic torts) and environmental protection. 第21页，共29页。DefamationDefamation is tarnishing the reputation of someone.It is in two parts, slander and libel. Slander is spoken defamation and libel is printed and broadcast defamation.

17、Defaming someone entails making a factual assertion for which evidence does not exist. 第22页，共29页。Words and Expressionsproduct liability 产品责任toxic tort 有毒物侵权行为Libel 以文字损坏名誉，诽谤罪，侮辱malicious prosecution 诬告第23页，共29页。Notesintentional infliction of emotional distress (故意精神伤害)：Intentional infliction of emo

18、tional distress (IIED) is a tort claim of recent origin for intentional conduct that results in extreme emotional distress. 第24页，共29页。malicious prosecution（诬告）：Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include (1) intentionally (and

19、 maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.第25页，共29页。free-market environmentalism: Free-market environmentalism is

20、a position that argues that the free market, property rights, and tort law provide the best tools to preserve the health and sustainability of the environment. （contrast to the approach of proactive environmental legislation.）第26页，共29页。Rylands v. Fletcher (1868):Rylands v. Fletcher (1868) is a landmark English legal case in which the Court of the Exchequer Chamber first applied the doctrine of stric