Toward the Search for the Proper Liability Rule for Harms Resulting from Sources of Risk: A Different Approach to the Choice between Strict Liability and Fault-Based Regime

An important issue in Taiwan today concerns the rising tension between strict liability and negligence. Article 191-3 of the Civil Code of Taiwan imposes a fault-based standard of liability on persons conducting dangerous activities. On the other hand, the majority of scholars believe that to afford greater protection, this rule should be changed into a strict liability rule. Traditionally, three arguments make it preferable to impose strict liability under certain circumstances. First, strict liability induces more safety incentives on the part of the defendant. Second, fairness requires that one who benefits from conducting dangerous activities should bear the risk of loss. Finally, the defendant is better able to spread the loss to the general public. However, based on the analysis of each justification, this Dissertation finds that all of these arguments fail. Accordingly, this Dissertation argues that intermediate liability, a variation under negligence principles, is a proper standard of liability when high risk of harm is involved;—i.e. Article 191-3 is proper in imposing fault-based liability to dangerous activities—for the following three reasons: 1) intermediate liability provides additional safety incentives by shifting the burden of proof to the defendant; 2) it conforms to fairness; and 3) it does not consider tort law as a means of insurance