Research on Several Issues of Tort Liability Law

Author: Liu Shiguo
Publisher:
Publish Date: 2004-12-01
Features: Introduction: This article evaluates and studies the following issues:
1. Interpretation of joint tort and related difficult problems
(1) Analysis of the provisions on joint tort in the aforementioned interpretation
Regarding joint tort, China's General Principles of Civil Law Article 130 only makes a principle-based provision: "When two or more persons jointly commit tort and cause damage to others, they shall bear joint liability." The Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of Civil Law Article 148 stipulates: "Persons who incite, assist others in committing tort, are joint tortfeasors and shall bear joint civil liability. Persons who incite, assist minors in committing tort, are tortfeasors and shall bear civil liability. Persons who incite, assist limited capacity persons in committing tort, are joint tortfeasors and shall bear primary civil liability." The first and third paragraphs of the aforementioned article are provisions on joint tort, while the second paragraph is on non-joint tort. Regarding joint tort, in addition to incitement and assistance, there are also forms such as joint harm, joint risk, and gang behavior. The Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases has made provisions on joint harm and joint risk, further perfecting the legal norms of joint tort through interpretation. Of course, there are also aspects of the relevant provisions of this interpretation that can be debated, and scholars have different opinions. The following focuses on discussing the relevant issues of the aforementioned interpretation.
The aforementioned interpretation Article 3 stipulates: "When two or more persons jointly intentionally or negligently cause damage, or although there is no joint intention or negligence, their infringement behaviors directly or indirectly combine to cause the same damage, joint tort is constituted, and they shall bear joint liability in accordance with Article 130 of the General Principles of Civil Law. When two or more persons have no joint intention or negligence, but their separately implemented multiple behaviors indirectly combine to cause the same damage, they shall bear corresponding compensation liability according to the degree of negligence or the ratio of causal force." According to this provision, joint harm refers to when two or more persons jointly intentionally or negligently cause damage, or although there is no joint intention or negligence, their infringement behaviors directly or indirectly combine to cause the same damage. This type of joint tort includes intentional joint tort and unintentional joint tort. Intentional joint tort refers to the situation stipulated in the first paragraph of Article 3 of the aforementioned interpretation: "When two or more persons jointly intentionally or negligently cause damage." Their joint point lies in the common fault of the number of people, and it is the common fault that connects the number of people together. Their common fault may be intentional, negligence, or a combination of both intentional and negligence. Unintentional joint tort refers to the situation stipulated in the first paragraph of Article 3 of the aforementioned interpretation: "When two or more persons have no joint intention or negligence, but their infringement behaviors directly combine to cause the same damage," as well as the second paragraph stipulated in Article 3: "When two or more persons have no joint intention or negligence, but their separately implemented multiple behaviors indirectly combine to cause the same damage." Their joint point does not lie in intentional communication but in the objective commonality of the result. Regarding joint tort, theories, legislation, and case law have gone through a process of development from strict to broad. In terms of theories, there are intentional communication theory and unintentional communication theory. In the intentional communication theory, there are also theories of joint intentional tort and joint negligent tort. The theory of joint intentional tort holds that joint tort requires joint intention, and negligence does not constitute joint tort. The theory of joint negligent tort holds that both joint intention and negligence can constitute joint tort. The aforementioned interpretation's provisions on intentional joint tort clearly adopt the theory of joint negligent tort. The theory of unintentional communication holds that joint tort is not limited to common fault; joint fault and result commonality can also constitute joint tort. The aforementioned interpretation's provisions on joint tort generally clearly adopt the theory of unintentional communication. The theory of unintentional communication aligns with the actual situation of industrialized societies today, such as environmental pollution, traffic accidents, and medical accidents, and is the correct choice for legislation and interpretation. Some scholars hold different opinions on the aforementioned provisions of the interpretation, believing that adopting the theory of joint result without the requirement of intentional communication expands the scope of joint liability and that it is difficult to distinguish between the joint tort that bears joint liability stipulated in the first paragraph of Article 3 and the joint tort without fault that bears proportional liability stipulated in the second paragraph. As for infringement behaviors with no joint intention or negligence that directly combine to cause the same damage, they should be treated as the infringement of multiple persons without fault and should be handled according to the liability for harm without fault, rather than being treated as joint tort. Some scholars believe that the "indirect combination" in the aforementioned interpretation does not constitute joint tort and that joint liability for tort should not be borne, and that each tortfeasor should bear corresponding liability according to the degree of fault and the ratio of causal force. Although these opinions have some, they also indicate that the aforementioned provisions of the interpretation still have room for improvement, but in my opinion, they are still basically feasible. Because if joint tort requires intentional communication, it will exclude environmental infringement liability without fault that exists in modern society from joint tort. In fact, it is not uncommon for multiple polluting enterprises to cause the same damage, which has objectively formed joint tort, and not allowing them to bear joint compensation liability is unfavorable to protecting victims. As for the second paragraph of the aforementioned interpretation stipulating "indirect combination," it does not state that joint liability is not borne. Therefore, the view that only the respective parties bear corresponding liability is questionable. The provisions of Article 3 in the aforementioned interpretation are an interpretation of Article 130 of the General Principles of Civil Law. Since Article 130 stipulates joint tort, the interpretation involved is naturally the issue of joint tort, and joint tortfeasors should naturally bear joint liability. However, from a practical perspective, like the "indirect combination" caused by environmental pollution, after each tortfeasor shares the liability, the victim can generally obtain compensation, and joint liability generally will not arise. This does not mean that joint tortfeasors do not have joint liability at this time. Another type of joint tort is the tort of gang violence. The tort of gang violence is an organized tort, and it is often accompanied by criminal behavior. In terms of tort liability, the main perpetrator and the ringleader in gang violence crimes should bear heavier criminal liability while also bearing heavier civil liability, while the accomplices and those coerced into committing crimes should bear lighter criminal liability while also bearing lighter civil liability. Of course, gang members should bear joint liability to the victim. Gang tort is somewhat different from other joint torts, its greatest characteristic being organized tort, where members not only have intentional communication but also have division of labor, and there is an organizer. This should be stipulated in the tort liability chapter of the future Civil Code, and the Draft of the Civil Code· Tort Liability Chapter· Scholar's Proposal has already made principle-based provisions.
(2) Legal countermeasures for the harm caused by falling objects from upper floors when the specific tortfeasor cannot be identified
The harm caused by falling objects from upper floors cannot be identified in the context of the rapid development of urban residential construction and urbanization in China, and it has sparked controversy among the judiciary and academia, becoming one of the difficult issues faced by legislation.
1. Cases, academic views, and provisions of legislative drafts
In judicial practice, when the specific tortfeasor cannot be identified in cases of harm caused by falling objects from upper floors, courts have adopted two completely different approaches:ing multiple suspected residents to share liability and dismissing the plaintiff's lawsuit. In view of the need to solve practical problems, the hastily enacted Civil Law (Draft) of the People's Republic of China Volume 8· Tort Liability Law Article 56 stipulates: "When items thrown from or falling from buildings cause harm, and the specific tortfeasor cannot be identified, the joint users of the building shall bear tort liability, but users who can prove they are not the specific tortfeasor are exempt." This is clearly stipulated as a type of no-fault liability.
2. Analysis of the aforementioned cases, academic views, and legislative draft provisions
Although the aforementioned judgments on joint risk behavior, the scholars' theory of joint risk behavior, and the relevant provisions of the Civil Code draft are beneficial for the mutual supervision of adjacent residents and preventing the occurrence of joint risk behavior, their disadvantages far outweigh this advantage. The main disadvantage is:
(1) Throwing objects from high-rise buildings or the detachment and fall of items is not joint risk behavior. Joint risk behavior refers to the situation where multiple persons commit acts without knowing who the tortfeasor is. However, falling objects from high-rise buildings, the tortfeasor is only one person, that is, only one person throws items to the ground or the items detach and fall, rather than adjacent residents throwing items to the ground at the same time or items detaching and falling at the same time, thus there is no joint risk behavior, and it does not constitute joint risk behavior liability. It must be pointed out: one cannot treat living in the same building or a certain unit of a building as joint risk behavior, as living itself does not constitute a risk, and the interpretation of risk cannot be infinitely expanded. Risk behavior is an active behavior that occurs at a specific moment, while living is a combination of active and passive behaviors, not a simple active behavior. The occurrence of risk behavior is targeted at others, while living is not targeted at others but rather a life phenomenon, that is, living in one's own residence. Therefore, it is necessary to distinguish between living and risk behavior.
Article 126 of the General Principles of Civil Law stipulates: "When buildings or other facilities, as well as placed or suspended objects on buildings, collapse, detach, or fall and cause harm to others, their owners or managers shall bear civil liability, but they can be exempted if they can prove they have no fault." This provision has already resolved the issue of damage caused by the detachment and fall of items from high-rise buildings in legislation. That is, when items detach and fall from high-rise buildings, the owner or manager is responsible, and non-owners or managers are not responsible, and owners or managers can be exempted from liability if they can prove they have no fault, such as due to natural irresistible forces like earthquakes or typhoons or the fault of others. The key to applying Article 126 of the General Principles of Civil Law is to have a clear defendant, that is, the owner or manager. If the owner or manager is unclear, the legal relationship cannot be determined, and the victim cannot obtain compensation. If all adjacent residents are sued under joint risk liability, there is no factual basis for the existence of joint risk behavior, and the court cannot adjudicate. Throwing objects from high-rise buildings belongs to general tort, and the prerequisite for litigation also requires the identification of the specific tortfeasor, otherwise, the legal relationship is unclear, and the court cannot adjudicate.
(2) Making residents living in the same building or unit share liability will make the innocent party feel that the law is unfair. The law cannot wrong the innocent, otherwise, it will lose people's trust. Today's legal system does not allow liability to be extended, and China's current legal system absolutely cannot implement "neighboring mutual punishment." Such severe laws that implement liability extension are unjust laws, and unjust laws are illegal and cannot be used as the basis for adjudicating cases. Some also believe that buyers should fulfill the obligation of properly choosing neighbors. However, we are currently in the context of urbanization and marketization, and it is impossible to make buyers bear the obligation of choosing neighbors, and buyers do not need to and cannot choose neighbors living in the same building. Moreover, who might commit the act of throwing objects from high-rise buildings, and when might items detach and fall, are unpredictable, so how could people make a choice? Therefore, holding adjacent residents liable for improper neighbor selection is not convincing.
(3) Whether it is throwing objects from high-rise buildings or the detachment and fall of items, if the damage is minor, the tortfeasor can generally take the initiative to bear liability, and the victim can bear the damage without difficulty. The serious issues, such as causing disability or death, often lead to the tortfeasor not taking the initiative to bear liability due to the significant responsibility. After such incidents occur, public security departments will actively investigate and solve the case, identify the cause and tortfeasor, and cases where the tortfeasor cannot be identified are only a small number. In short, cases where falling objects from high-rise buildings injure people and the tortfeasor cannot be identified will not frequently occur, and can be solved through personal accident insurance or social relief, and it is not appropriate to use the method of liability extension.
The aforementioned proposal that when the tortfeasor of throwing objects from high-rise buildings cannot be identified, adjacent residents should bear liability through fair liability is also somewhat inappropriate. Fair liability must be applied when both parties have no fault, and it must be applied when the tortfeasor is not bearing liability is unfair. When the tortfeasor of throwing objects from high-rise buildings cannot be identified, it cannot be determined which party's fault caused the damage, but among all adjacent residents, there must be someone who committed the fault of throwing objects from high-rise buildings, which does not meet the conditions of both parties having no fault and the tortfeasor being determined when applying fair liability. Therefore, this situation is also unfair when applying fair liability.
3. Improve the social security system and provide social relief for serious victims whose tortfeasor cannot be identified
Those injured by falling objects from high-rise buildings but whose tortfeasor cannot be identified can only receive social relief, that is, solve the problem through improving social security legislation. Social relief is different from compensation, and the victim must suffer serious damage, and the relief amount is only a part of the compensation amount. Implementing social relief is determined by the special function of the state, and the purpose is to compensate for what tort liability law cannot do, and the idea that no matter what kind of damage is expected to be solved through tort liability law is not entirely correct. The content of this book includes: discussions and research on several issues of the Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, privacy and its legal protection, public opinion supervision and news infringement of the right to reputation, research on the tort of a third party infringing on creditor's rights, and civil liability for unfair competition, etc.