On Supplementary Liability Of Government

The term, "Supplementary liability of government, does not exist in the theory and practice of law. It is created on the base of supplementary liability of tort in this paper.In the theory and practice of tort, supplementary liability of tort was created to meet the certain needs that joint and several liability and share of liability could not achieve. And business operators, educational institutions and other institutions alike should assume the liability when direct torfeasors can not afford the damages or can not be found. Theoretically, transaction security obligations originated in Germany was the fundamental cause that supplementary liability of tort was created. Practically, supplementary liability of tort was stipulated firstly in the Interpretation of Trial on Personal Injury of Supreme Court of PRC in 2003, and formally established in the Law of Tort of PRC of 2009.In the Law of Tort, the supplementary liability of tort imposed to business operators in the Interpretation in 2003 was endorsed, and new kinds of supplementary liabilities imposed to educational institutions and to corporations where labor is dispatched, were newly proposed.Although supplementary liability is a new form of liability assumed, it has played a big role in expanding the limitation of liability imposed to tortfeasors. As to governmental liability, there are the same issues with those being discussed in civil torts by legal professionals, that is, how to expand the limitation of liability of government. Based on the experiences from supplementary liability of tort, supplementary liability of government is being created to expand the limitation of liability. This is a new and effective perspective to expand the limitation of liability.The paper is composed of introduction and main contents. They are as follows:The introduction includes two parts:why to research and how to research. In the first part, an explanation is given to the reasons, aims and effects for this paper, and the present status of study is analyzed on supplementary liability of tort. Then relevant reviews will be made. In second part, explanation is given to research plans and approaches on supplementary liability of government.The first chapter includes three sections, offering the definition to supplementary liability of government. In section one, the backgrounds of supplementary liability is offered. As to supplementary liability of tort, that how the concept is formed and system is established are given. In section two, the connotation and denotation are defined. In section three, the relations between supplementary liability of government and supplementary liability of tort are analyzed. One aspect is that governmental liability originated from tort, and the other is there are differences between them.The second chapter includes two sections, analyzing the theoretical basis of supplementary liability of government. In section one, the legitimacy and rationality of governmental liability is set forth from the perspective of jurisprudence and economics. In second section, the legitimacy and rationality of supplementary liability of government are set forth from the perspectives of supplementary liability of tort and governmental liability, for supplementary liability of government is composed of supplementary liability and governmental liability.The third chapter includes two sections, analyzing the basis in reality of supplementary liability of government. In section one, necessity is analyzed. The defects in governmental liability are analyzed, and then the approaches to perfect are offered. Based on the necessity, in section two feasibility is set forth:Firstly, supplementary liability of tort would be learnt from; secondly, supplementary liability of government for educational institutions has been stipulated in tort law. Since educational institutions are a little characteristic of public nature, so they are the bridge from supplementary liability of tort to supplementary liability of government; Thirdly, in a specific Explanation from Supreme Court of PRC, Public Security Organizations (police department) should assumed obligations for not protecting citizens and their property from being violated by tortfeasors. This kind of obligations is fallen into supplementary liability of government. Fourthly, indirect tort liability has been created abroad, not in the form of supplementary liability but of joint and several liabilities.The fourth chapter includes two sections, interpreting the elements of supplementary liability of government. This chapter focuses on the two elements:liability principles and causation. In section one, analyses are offered step by step on liability principles of tort, on liability principles of governmental liability, and on liability principles of supplementary liability of government. In second section, causation is analyzed, firstly causation on supplementary liability of tort; secondly causation on supplementary liability of government.The fifth chapter includes two sections, exploring approaches of the public fiancial support. In section one, risks may arise if the limitation of liability of government expands. So the risks should be recognized and feasible approaches on financial support to resolve them should be found. In section two, detailed approaches are offered. The approaches are:1) establishing and perfecting the unified governmental compensation fund; 2) establishing compensation fund for liability risks; 3) establishing liability insurance applying to governmental tort.