The Construction Of Mass Tort Liability Insurance System In China

Along with the continuously in-depth development of social industrialization, at the time when human beings are enjoying scientific and technological progress and social civilization, they are also trapped in the threats of risk society. The large-scale tort events frequently occurred in the fields of food security, product liability, security violation, environmental pollution, safety responsibility, and so on caused harms to the body and property of vast number of people and influenced the economic order in normal running. If it is improperly handled, it will even cause social instability and then threaten the safety in our life. It makes the traditional “one-to-one” infringement damage compensation unable to satisfy the relief for the large-scale infringement damages as the mass tort own characteristics including majority of victims, homogenous reasonsfor damage, complex causal relationship, difficulty in compensation for damages, etc. While the liability insurance acts as the core mechanism to effectively resolve the risks of liabilities for the mass torts and compensate huge losses. How to design a system frame to make it maximize the positive effects is the major subject faced by the theoretical cycle and practice circle. From the legal views, it is necessary to systematically study the mass tort liability insurance system from the theoretical basis to the system construction. Especially under the realistic background that the liability insurance market started relatively late and all types of liability insurances develop relatively slow in China, it is more necessary for us to provide enough theoretical basis and comprehensive system analysis for the construction of mass tort liability insurance system in theory. In this article, comprehensive study on the problems including the theoretical basis, necessity of system, analysis on the feasibility and extraterritorial empirical inspection of the mass tort liability insurance system and the rule design of the mass tort liability insurance system in China was done.As for the basic theory of the mass tort liability insurance, “mass tort” was firstly put forward by the western scholar, but Chinese scholars didn’t reach a consensus after introducing it. In this article, it firstly defined the mass tort act as an illegal civil act that a single infringer or multiple infringers cause a huge amount of harms to the body and losses to the property of mass victims, or cause harms to the body and property of those victims due to one or several homogeneous reasons, and the victims are provided with special relieves. According to this connotative definition, the characteristics of the mass tort were clarified. It also categorized the damage accidents frequently occurred in the fields of food and drug liability, large-scale environmental pollution, highly dangerous operation, and securities fraud according to those characteristics. From the angle of the mass tort liability risk management, it made definitions to the mass tort liability insurance and pointed out that the mass tort liability insurance is helpful to disperse the mass tort liability risks, maintain the lawful rights and interests of victims, lower the social cost, share the governmental responsibility, implement the security of law, and realize values including the value of efficiency.As for the value legitimacy of the mass tort liability insurance construction, the specificity of the mass tort makes the traditional civil liability shouldering hard to satisfy the relief for the victims. If we purely rely on the civil litigation to cope with the current mass tort, under the existing legal system frame in China, adopting the methods of single subject and single case filing will waste the judicial resources, thus, it is also difficult to reach the goal of relieving the victims. The administrative relief is often undertaken by the government finance who shoulders the main compensation liability, which may lead to the public dissatisfaction and cause social problems, thus, it will be thrown into doubt. The fund compensation mode that played a positive role in the foreign countries also influences the application of damage compensation fund due to the initiation of fund, the source of fund property and the management and operations, etc. The defects existed in the corresponding relief measures provide requirements of possibility and necessity for the liability insurance, the socialized compensation method, to be utilized in the mass tort. The necessity is mainly reflected in compensating the huge amount of harms, realizing the distributive justice, guaranteeing the rights and interests of victims, realizing the safety of law and the value of efficiency, promoting the economic development and maintaining the social stability due to the need of relief for the mass tort. However, the necessity of development doesn’t necessarily own the feasibility of construction. Through the analysis on the insurability of traditional insurance, it pointed out that the mass tort liability insurance agrees with the development direction of Chinese insurance industry through insurable expansion and the basic legal environment begins to take shape. The support and promotion of relevant policies and the construction of the mass tort liability insurance system are totally necessary and feasible.As for the extraterritorial inspection of the mass tort liability insurance system, the insurance industries in the main western developed countries have a long history in development; they accumulated rich experience in theory and practice in the field of liability insurance. In this article, based on the current situation of corresponding system design and the content of applicable law applied in different fields where the mass tort occurs in the western countries, it referred to the experience about the legal environment for the development of mass tort liability insurance. The establishment of the liability without fault and the application of causation presumption will increase the risks of potential infringer; the increase of risks will certainly make the demand for insurance expanded, and thus make the development of liability become inevitable. The positive policy guidance also protects the development of liability insurance.As for the construction of the mass tort liability insurance system, in this article, it mainly started from two aspects, the specific rule design and the general framework of external environment for the construction of mass tort liability insurance, to simultaneously construct the mass tort liability insurance system in China. The general framework mainly includes law and regulation system, policy guarantee system, technology support system and capacity building platform. Under the general framework, the corresponding system construction is established and improved to protect the development of the mass tort liability insurance. The specific system design mainly includes the insurance model centering on the forcible liability insurance. In order to rationally utilize the existing resources, in this article, it advocates that the commercial insurance company under the government guidance acts as the main business entity and the affiliated co-insurance organization gives cooperation.especially the state-holding insurance company, as the underwriting subject, to underwrite the tortacts that the liability without fault or even the gross negligence is caused by the infringer, to list the personal injury, property loss and mental impairment into the range of insurance and compensation and list the excluded liability to mitigate the risks in the operation of insurance company, and to design the rules of limited compensation, deductibles, determination of premium rate, underwriting mode of the claims during the period. Key Words: mass tort; tort liability; liability risk; liability insurance...