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Michael Porter Final Thesis.pdf (622.35 KB)

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Restitution in Chinese and American Tort Law: A Comparison of Historical Factors and Modern Cases

Porter, Michael
http://rave.ohiolink.edu/etdc/view?acc_num=osu1398901345

Abstract Details

2014, Master of Arts, Ohio State University, East Asian Languages and Literatures.
This paper deals with tort principles used in "no-fault" tort cases in China, comparing them to similar cases in America. These Chinese cases mainly involve restitution, most notably equitable liability or the "fairness principle". From a legal perspective, there are two main issues in the discussion of equitable liability principles: first is that some cases would be considered no-fault in China, while in America might have very clear fault. Second is that, unless it is a strict liability case, no-fault cases in America by definition mean the plaintiff will not be able to recover. This is unlike in China, where the fairness principle gives judges a legal basis on which to assign damages on a case by case basis according to their own conscience, if they feel neither of the litigants are at fault. However, the very idea of fault is difficult to explain and has varied considerably with time, and this is not even considering the immense cultural differences between the common law nations and China. Because of this, the use of the fairness principle comes at the expense of establishing clear guidelines for a duty of care or causation. Knowledge of how tort cases have been dealt with throughout history is indispensable to this paper's fundamental purpose: what does society's idea of fault and compensation show about its culture? What does it show about its values? For this reason, in addition to modern case analysis, this paper also focuses on the historical analysis of Chinese and common law dispute resolution. The kinds of cases included in this paper are random accident cases, rescue cases, parental liability cases, and falling object cases.
Jianqi Wang, Dr. (Advisor)
Xiaobin Jian, Dr. (Committee Member)
Galal Walker, Dr. (Committee Member)
85 p.
Asian American Studies; Asian Studies; Comparative; Law; Legal Studies
tort law; no fault liability; fairness principle; equitable liability; assumption of fault; restitution; comparison of China and America

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Citations

  • Porter, M. (2014). Restitution in Chinese and American Tort Law: A Comparison of Historical Factors and Modern Cases [Master's thesis, Ohio State University]. OhioLINK Electronic Theses and Dissertations Center. http://rave.ohiolink.edu/etdc/view?acc_num=osu1398901345

    APA Style (7th edition)

  • Porter, Michael. Restitution in Chinese and American Tort Law: A Comparison of Historical Factors and Modern Cases. 2014. Ohio State University, Master's thesis. OhioLINK Electronic Theses and Dissertations Center, http://rave.ohiolink.edu/etdc/view?acc_num=osu1398901345.

    MLA Style (8th edition)

  • Porter, Michael. "Restitution in Chinese and American Tort Law: A Comparison of Historical Factors and Modern Cases." Master's thesis, Ohio State University, 2014. http://rave.ohiolink.edu/etdc/view?acc_num=osu1398901345

    Chicago Manual of Style (17th edition)

osu1398901345
2,092
© 2014, some rights reserved.Creative Commons License Restitution in Chinese and American Tort Law: A Comparison of Historical Factors and Modern Cases by Michael Porter is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. Based on a work at etd.ohiolink.edu.
This open access ETD is published by The Ohio State University and OhioLINK.