The other day last week, after I was cod called by the professor and I made a very bad performance in the morning, I came to the office of the professor in the afternoon to discuss a question.
The question is around how courts handle a law which was issued by some legislatures adding some extra or additional obligations to the conductors. For example, as one question of the mid-term test shows, there is a state law enacted by the state congress requiring that to hold any body-touch sports game, a prior licence from the government is a must. Now such a game was held without a licence and some injury caused during the game. Then, what is the role of that statutory?
In answering the question during the test, as I did not recall how the cases I have read in the past several weeks were held by the courts, I just replied according to my intuition. I relied that the general rule of determining a negligent torts, common law rule would be applied, which means that obligation, causation, injury, negligence these 4 elements should be considered one by one. And in doing this, the court should consider if the statutory obligations would affect the occurrence of of the incident. If the added obligations would not affect, then even if the defendant breached the statutory, that does not mean the organizer would be liable for the injury. But after I got out of the test classroom, it occurred to me that I made a mistake. In the casebook, such kind of cases are handled by the courts in a way of "shifting burden of proof". In the example above-mentioned, since the organizer of the game fails to obtain licence from the government, which is a violation of the statutory, then the court would make the organizer bear the burden of proof to prove that they are not liable for the incident. This way, in one aspect the statutory was respected, in another aspect, the courts would not worry about a lot more disputes would be created since more and more statutory would be enacted.
In China, a lot of government departments enacted a lot of regulations which could be broadly deemed as law. But this kind of laws cannot create civil right or civil interests. According to Chinese Torts Law, only those listed in that law with the substance of civil rights or civil interests were offended, would there be a torts. So in China, the question is quite different. And I even think that the Chinese system in this is clearer.
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