关键词: 过失认定标准, 间主观性, 汉德公式, 修正的汉德公式, 量化困境

Abstract:

 According to the traditional standard of negligence determination, the Civil Law System adopts the kindhearted Father Criterion while the Common Law System adopts the Reasonable Persons Criterion. The Hand Formula has been created with the development of the analytic techniques of Economics of Law. It is considered to be the evolution of the standard of negligence determination, but in the meantime difficult to quantify. According to the Intersubjectivity theory, the traditional standard and the Hand Formula are unified in the subjectiveobjective continuum. The traditional standard has a relatively weaker objectivity without being purely subjective while the Hand Formula has a stronger objectivity without being purely objective, so the difficulty in quantification is inevitable. In order to solve the dilemma, the Modified Hand Formula including four propositions is proposed based on the assumption that the original Hand Formula would have a correct probability of N.
Key words： standard of negligence determination; the Hand Formula; dilemma in quantification; intersubjectivity; the Modified Hand Formula