Font Size: a A A

Researches On Principle Of Liability For Special Torts

Posted on:2012-12-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z N JiFull Text:PDF
GTID:1116330371955504Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The Tort Liability Law of the People's Republic of China (TLL) proposed by scholars reflects the spirit of placing people's interests first because of its basic content embodies the central tenet of the protection of the injured party. Article 1 of the TLL states that this Law is formulated "In order to protect the legitimate rights and interests of parties in civil law relationships, clarify the tort liability, prevent and punish tortious conduct, and promote the social harmony and stability-" For example, Article 87 states that " Where any object thrown out of a building or falling down from a building causes any harm to another person and it is hard to determine the specific tortfeasor, all the users of the building who possibly commit the tort but those who can prove that they are not the tortfeasor shall make indemnity." And Article 53 provides, "Where the driver of a motor vehicle flees after a traffic accident occurs to the motor vehicle, if the motor vehicle is covered by the mandatory insurance, the insurance company shall make compensation within the liability limit of the mandatory motor vehicle insurance; or if the motor vehicle cannot be identified or is not covered by the mandatory insurance, and the expenses for the death of or personal injury to the victim, such as rescue and funeral fees, need to be paid, the advances shall be made out of the Social Assistance Fund for Road Traffic Accidents. After advances are made out of the Social Assistance Fund for Road Traffic Accidents, the governing body of the fund shall be entitled to be reimbursed by the person liable for the traffic accident." These two provisions reflect the legal principles of the preeminent importance of the protection of life, health and safety.The TLL has been established as multi-faceted liability system to provide more comprehensive protection of individual civil right(s) and interests while also being broad enough in scope to accommodate future development. For instance, most of developed continental law system countries rely on single-principle fault liability while dealing with no-fault responsibility via special laws and/or regulation(s). However, China's TLL incorporates a multi-attribution system with specific provisions covering fault, no-fault liability and presumption of fault liability. This has important implications for the protection of individual civil rights. In providing for various types of tort liability, the TLL covers many kinds of liability responsibilities, the establishment of which is based on a system of a multitude of criterion with constituent elements and exemptions. The TLL consists of 92 articles and is much more complete by way of comparison than are the French Civil Code consisting of 5 articles on liability responsibility and the German Civil Law, adopted at the beginning of the Twentieth Century, which consists of 31 articles. In my opinion, TLL will be the focus of future legislative developments in the civil law field. Most of the special tort liabilities are based upon the three principles of fault liability, presumption of fault liability and no-fault liability. We can propose that attribution of fault responsibility is an extra principle to general fault liability, thereby recognizing a special criterion of liability. TLL, in fact, is divided into two categories:General Torts and Special Torts. More specifically, General Torts provisions adopt general fault liability principles whereas Special Torts adopt specific provisions applicable to particular kinds of tortious conduct. It can be said that General Torts apply the same standard to a wide range of conduct but Special Torts adopt itemized concepts, applying different rules and standards limited to particular (enumerated) tortious conduct. All of the following Chapters of the TLL are predicated upon this "special criterion of liability":Product Liability (ChapterⅤ) applies the principal of no-fault liability; and Liability for Motor Vehicle Traffic Accident (ChapterⅥ) applies the principle of presumption of fault liability; Liability for Medical Malpractice (ChapterⅦ) is based upon fault liability and the presumption of fault responsibility; Liability for Environmental Pollution (ChapterⅧ) is based upon no-fault liability; Liability for Ultra-hazardous Activity (ChapterⅨ) and Liability for Harm Caused by Domestic Animal (ChapterⅩ) both apply liability without fault; and Liability for Harm Caused by Object (Chapter XI) applies the principle of presumption of fault liability. Articles 34 and 35 of Special Provisions on Tortfeasors (Chapter IV) apply no-fault liability. With the exception of the above chapters, the general principles of tort liability are applicable.Through the study of TLL, one can determine that a multi-faceted liability system forms the core structure of tort law. Special Torts are subject to particular, enumerated regulations and standards while all other classes of torts are subject to general principles. Notably, the Special Torts law did not adopt a singular methodology in an attempt to apply one standard to the entire range of special torts. Therefore, in the study of Special Torts one will be unable to deduce a common principle applicable to all cases. Rather, one must analyze each class to discern the particular underlying principle.From the perspective of this thesis, prior to the promulgation of the TLL it is necessary to conduct further research regarding the principles of the different criterion of liability as applied to the various special torts and the different proposals of criterion for determining liability, including those advocated by scholars outside the general consensus.This essay consists of five Chapters as follows:a) Chapter I, the development of theory regarding criterion of liability as well as the principles of fault liability, no-fault liability, presumption of fault liability and different theories regarding the equitable attribution of liability;b) Chapter II, research on the construction of China's special tort liability, including the special definition, origin, type and nature of the liability, an exploration of the theoretical development regarding standards of liability, to the imputation principle as a type of standard; in addition, studies in the common law (Anglo-American) principles governing torts of special type as a means to further understanding of the relevant liability theory in China. China's "Tort Liability Law" will be divided into a special responsibility for specific violations as the main subject of the tort system, and the application of special principles of liability in regards two kinds of specific violations. c) Chapter III, the major chapter, expands the theoretical understanding of the two prior chapters with research in regards special theories of liability examined in the context of two specific kinds of tortious conduct. The Chapter consists of seven sections, as follows:the tort liability of individuals either wholly or partly lacking civil capacity, the liability for unintentional tort, the tort liability of employer for employees, the tort liability for infringement of labor relationships, the liability for network-related torts, the tort liabilities of managers and safety personnel related to their responsibilities for public areas, and the tort liability of individuals either wholly or partly lacking civil capacity for actions performed at educational institutions by it's personal or others.This chapter in general examines the theoretical basis of a variety of special tort liability, called a special tort. As a general rule in the field of torts, liability is assigned to the person who committed the tortious action. In other words, the main responsibility is consistent with the actors. However, in special circumstances the law in regards certain subjects contains special provisions whereby liability is assigned to parties based on the principle of "responsibility for the behavior of others.'d) Chapter IV, research on the principles and theory of special tort liability, is divided to seven sections as follows:product liability in section one, traffic accident liability on section two, harms arising from medical treatment in section three, environment pollution torts in section four, torts arising from highly dangerous activities and actions in section five, the responsibility of owner for the actions of their animals in section six, and responsibility for harm caused by objects in section seven.e) Chapter V, examines the concepts presented in prior chapters to set forth criterion for tort liability of employers, minors, traffic accidents, and actions related to the internet. We adopt a comparative analysis method in regards different ideas about the criterion of liability drawn from the civil law systems of other countries. For example, pursuant to Article 36 of the TLL, internet users and internet service providers shall assume tort liability if they utilize the internet to engage in tortious conduct. However, from a network service provider infringement liability perspective, this is not as easy as infringing on intellectual property. Because the characteristics of Internet service providers, this article concludes that tort liability for Internet service providers applies mainly to fault, whereas the principle of liability without fault and the equitable liability doctrine are less applicable. Rather, in the case of Internet content providers it is as content publishers that they are the most directly responsible for network abuses. Infringement by network content providers involves different situations and this calls for the application of different liability principles.Tort law is a very complex area of legal development. It also embodies the need for modern society to rapidly adapt the law to protect the civil rights of citizens and legal persons. Violations occur not only in the field of personal and property relations but also in the field of labor relations, in regards environmental protection, education, the management of natural resources, relationships, and so on. Consequently, the scope of tort law is very broad. As a consequence of the development of society, the legal system has adapted with the addition of a number of special categories of torts covering areas such as product liability, medical malpractice, traffic accidents, etc. The gradual separation of these categories from traditional tort law illustrates the importance of these social developments.
Keywords/Search Tags:special torts, liability principle, fault liability, presumption of fault liability, no-fault liability
PDF Full Text Request
Related items