Research On Supplementary Liability Of Infringement

The theme of this paper is supplementary liability for tort and related tort types. And the whole paper can be divided into the following parts: the introduction, the first to sixth chapters, and the conclusion.The introductory part can be further divided into three aspects: Firstly, this paper reviews the supplementary liability in the civil law. It explores the development path of supplementary liability in China, categorizes relevant provisions of supplementary liability in the current law, distinguishes different types of supplementary liability, and thus limits the study subject of this paper to supplementary liability for tort. Secondly, this paper introduces the theoretical controversies on the supplementary liability for tort. Based on different positions held by scholars, the standpoints can be divided into the school of approval, reform and negation, then this paper reviews their contributions and shortcomings. Based on relevant provisions of supplementary liability, the author cites six cases to illustrate that there are still many doubts and weaknesses in the existing provisions and further elaboration and improvement through systematic research are needed. Finally, this paper introduces the scope of the research, the research methods and innovations.The first chapter is named as The Basic Meaning of Supplementary Liability for Tort, and it is mainly descriptive. From the perspective of interpretation, this paper discusses specific elements of supplementary liability for tort. Ultimately, this paper finds that supplementary liability for tort consists of three basic elements: the legal responsibility order, the double limit of supplementary liability, and the full right of recourse of supplementary liability subjects. To be more specific, the legal responsibility order refers to the direct responsibility which belongs to the first pick and the supplementary liability belongs to the second pick; the double limit of supplementary liability suggests that supplementary liability is not the full complement of the part that the person directly responsible is unable to compensate, but within the range of the part that the person directly responsible is unable to compensate, and based on the negligence of the supplementary subject, then the share of responsibility can be determined; the full right of recourse of supplementary liability subjects indicates that supplementary liability is risk liability, and direct responsibility is the ultimate responsibility.The second chapter is named as The Unique Attributes of Supplementary Liability. From the perspective of “the nature manifested when one thing and something else interrelated”, this chapter is aimed at clarifying the relationship between tort liability and relevant things. First, after analyzing the differences among supplementary liability for tort, traditional joint liability, unreal joint liability and the shared liability, the supplementary liability for tort is a new and independent tort liability form concerning multiple tortfeasors. Second, the nature of supplementary liability for tort is summarized as the direct liability bears absoluteness, and the supplementary liability bears uncertainty, and there is implication between supplementary and direct liability. The third part is about the effect of supplementary liability, analyzing the effect of responsibility, the effect of liability exemption, the subjects of the right of defense, and the effects of the right of defense. The fourth part clarifies the relationship of the right to claim of supplementary liability for tort. It includes that the claims of infringement from directly responsible person and supplementarily responsible person cannot be encompassed by existing theory of right to claim. The tort claims form directly responsible person and the default claims form supplementary responsible person constitute the generalized petition rights, and the tort claims and default claims form supplementary responsible person constitutes a narrowed petition rights.The third chapter is named as The Corresponding Tort Types of Supplementary Liability for Tort, and it is based on the relationship, that is, to link together the study of tort types and supplementary liability for tort. Firstly, it introduces typical tort types assigned from supplementary liability for tort, namely, the third person failing to fulfill its security obligations, failing to fulfill the obligation to educate and protect the potential victimes from acts of infringement, and issuing false notarial instruments. Secondly, this part discusses some tort types that are mistaken as supplementary liability for tort, namely, the tort of dispatched workers. Thirdly, this paper shows the types of tort that are ignored, including negligent conduct of the audit from accounting firms, the false testing or certification behavior from testing or certification bodies, and person under guardianship infringes due to abet or assistance, and the guardian fails to fulfill his obligations, users of the motor vehicles infringes and the owners fail to fulfill the duty of care for all deficiencies. Finally, this paper analyzes the tort types that are misread as supplementary liability for tort, such as the supplementary liability of the beneficiaries due to third party’s infringement, the parental liability from the damage caused by their children, the responsibility from real estate property registration errors, the liability of the affiliated person in the table management, the tort liability from network service providers due to the inability to provide information of the infringer without justified causes, and the liability of the illegal developer(or subcontractors) when the employees get injured. Based on this, this paper summarizes the general rules to assign supplementary liability for tort, including infringement, subjective mental state, responsibility principle, and the subsumption range.The fourth chapter is titled as The Overseas Practice and Enlightenment of the Tort Liability Borne by Multiple Tortfeasors, and it is developed from the perspective of comparison. Firstly, is the paper carries out the comparative study of tort liability borne by multiple tortfeasors, and introduces the major forms of tort liability from legal systems of common law and civil law countries. Second, the paper introduces overseas practices concerning the types of liability which are recognized as supplementary liability for tort in China. Third, this paper the third summarizes views about the current unification movement of European private law movement, paying much attention to the latest informal European legal texts, such as The Principles of European tort Law, and European Model Civil Code Draft: Non-contractual Liability to Cause Damage, Damage Act of Austria(discussion draft). Through comparative study, the following revelation can be found: supplementary liability for tort is a special case in comparative law, liability form that the extraterritorial law chooses is tougher, the liability of multiple tortfeasors is getting increasingly rich, and the liability form reveals a “type hybrid” development trend.The title of the fifth chapter is The Contribution and Shortcomings of Supplementary Liability for Tort, and it is written from the perspective of justification and reflection. Firstly, the legal basis for supplementary liability for tort is analyzed, thus it concludes that based on cost analysis theory, hazard control theory and trust relations theory, to require those who are supplementarily responsible to shoulder liability bears legitimacy. Secondly, for those views that are against supplementary liability for tort, such as views that it contravenes the principle of full compensation, the principle of fault liability, the fundamental spirit of the protective obligation etc., the author refutes these views one by one and ultimately concludes that some of these opposing views cannot be justified. And although some views contain reasonable aspects, it is not enough to fundamentally negate supplementary liability for tort. Thirdly, from the perspective of interests balancing, the causal relation involved and the institutional advantages, it indicates that supplementary liability for tort contains reasonable factors. Fourth, to reflect, this paper admits that supplementary liability for tort is not an impeccable form of liability, it cannot be coordinated with the collateral obligation due to the breach of contract, and "the legal responsibility order" is unfair to the holders of compensation rights, it is not reasonable for the allocation of second lawsuit costs, and the procedures to claim are complicated.The sixth chapter is mainly about The Improvement of the Supplementary Liability for Tort. In regard to the provisions of the supplementary liability, this article argues from the following four aspects: Firstly, some provisions stipulated supplementary liability but ignored the subjective psychological state of tortfeasors. According to this, this article suggests that narrow construction should be adopted. Using narrow construction, the scope of supplementary liability is limited to "direct tortfeasor who has intentionally caused infringement + the negligent tortfeasor who takes supplementary liability". Between direct tortfeasor and supplementarily liable tortfeasor in the structure collocation, we should adopt other liability forms. Secondly, given the duty to protect is multifactorial, this article suggests that it is divided into protection obligations based on different factors, such as special relationships, trust relationships, risk control and so on. At the same time, it suggests the scope of application should be limited by foreseeablility rule and the principle of good faith. Thirdly, because of the Cahn-Ingold-Prelog rule of supplementary liability is lack of justification, this paper suggests the unreal joint-liability should be adopted. According to interpretive theory, we can either reform the beneficium excussionis of those who are supplementarily liable or limit the so-called “supplementary” to the interior distribution of liability among those who are directly liable and those who are supplementarily liable. Fourthly, according to the litigation forms of supplementary liability, "the one-way and necessary co-litigation" coined by the supreme people’s court is unreasonable. This paper proposes that litigation forms should be classified in accordance with the options of plaintiffs.The last chapter is Conclusion. This chapter summarizes the author’s basic standpoints about the supplementary liability for tort, clarifies the shortcomings of this paper, and then points out the unaccomplished issued in this paper.