On Supplementary Liability For Tort

This paper takes the supplementary liability for tort and its constitutive requirements,system orientation,applicable types and liability-bearing rules as the theme.The paper is consist of the introduction,six chapters and conclusion.Tort supplementary liability is a new liability mode in our tort liability law.There is no clear concept of tort supplementary liability in each country,but there is a recognized liability system similar to tort supplementary liability,which is typically represented by the German law on liability for breach of communication security obligation.Although the current “Tort liability law” and judicial interpretation of China provide several types of tort supplementary liability,due to the unclear theoretical nature of tort supplementary liability and the excessive principle in legislation,no clear and uniform applicable rules have been formed,so there are still many problems and difficulties in application.Although the tort supplementary liability system has solved the implementation of several people’s tort liability and the relief of victims’ rights in terms of functions,due to the imperfect system design,it is still necessary to conduct in-depth review,reflection and system reconstruction on the nature,elements,functions,types and liability undertaking rules of tort supplementary liability.The establishment of tort supplementary liability system in China has experienced a process from the application of a judicial practice case,the provision of judicial interpretation to the formal establishment of “Tort liability law”,which is the result of the expansion and development of tort liability mode in China.The current legislation and theoretical circles define the obligation of tort supplementary liability as security obligation,which is not rigorous and does not accord with the nature and characteristics of tort supplementary liability.The duty of tort violation in tort supplementary liability,and the duty of intentional tort prevention of a substantial third party,belong to one of the types of security obligation.Therefore,the so-called supplementary liability for tort refers to the consequential and supplementary compensation liability that the actor violates the third party’s intentional tort prevention obligation and causes the victim to be infringed by the third party.After assuming the liability,the person liable for infringement shall enjoy the right of unilateral recourse against the direct infringer.Defining the supplementary liability for tort from the risk prevention obligation embodies the concept of tort law of the tort prevention and risk prevention.As a tort liability of omission combined with intentional tort of a third party,it has the characteristics of fault,conformation and supplement.The supplementary liability for tort has its theoretical basis and functional advantages.On the theoretical basis,The supplementary liability for tort originates from the development of liability hierarchy theory,risk control theory and trust theory.Based on the theory of hierarchy of liability,it is not necessary for liability to be established based on the same cause,the same legal relationship or the same level of payment obligations,but it can be based on different contracts or events,resulting in the hierarchical and sequential nature of debt performance.In the theory of risk control,the supplementary responsible person has corresponding risk control obligations and responsibilities based on his own ability to control his behavior.It reflects the respect and protection of trust interests in the public domain,which is the fundamental requirement that the legal order must meet.The system advantage of the supplementary liability for tort mainly fills the gap in the tort liability system of several persons,enhances the flexibility of the application of tort liability,helps to balance the protection of the legitimate rights and interests of the parties,and solves the dilemma posed by the omission of tort liability.From the perspective of comparative law,although there is no clear concept of tort supplementary liability in the two legal systems,there are liability rules for similar cases.In mainland France,Germany,France,Switzerland and other countries have communication security obligations and related responsibility sharing system.The most important contribution of German law lies in the theory of communication security obligation,which establishes the rules of not truly joint and several liability sharing that the actor bears under the obligation of communication security.The French law establishes the joint liability and non-real joint liability rules for several torts,but it is more sophisticated in the study of the causation of the coincidence of related cases.The rule most similar to the pecking order of the supplementary liability for tort is embodied in Swiss legislation.The Swiss law has established the theory of taking the joint and several liability as the basis and assuming the subordinate liability for different reasons,including illegal ACTS,contracts,legal provisions and other reasons.This rule provides the most valuable theoretical reference for the establishment of the supplementary liability for tort in China.In common law countries,there exists the theory of "violation of the third party’s intentional tort prevention duty",and the emphasis on the duty of care of the defendant is to control the actual infringer,or to remind the potential victim of the plaintiff of the danger of the third party.This provides a new perspective for us to more accurately understand the nature of tort violation in the supplementary liability for tort.The supplementary liability for tort belongs to the category of plural-party tort.The essence of the plural-party tort system is a complex system of coexistence of multiple infringers,multiple legal relationships and multiple liability for compensation.The biggest difference of the mode of plural-party tort in practice is the risk allocation when the victim cannot be compensated.The core is the plural-party tort behavior and the problem of responsibility sharing.Based on the current tort law system framework,joint and several liability,share liability,unreal joint and several liability and supplementary liability have jointly established the system framework of pluralparty tort liability.The four kinds of the liability have some commonalities,but there are obvious differences,which determine the types and areas of tort applicable to them.The difference between supplementary liability and joint and several liability is reflected in the scope of the liability,the sequence of liability,the content of the right of recourse and the causes of responsibility;Supplementary liability and share-based liability exist in the division of the responsibility share,but they are different in the scope of responsibility,the sequence of responsibility,the relationship between the responsible person and the content of the right of recourse;Supplementary liability and untrue joint and several liability belong to the "Atypical" form of tort liability of several persons.Both of them have the same relief function as the ultimate liable person and the internal recovery relationship.However,there are significant differences in the share of the liability,the sequence of liability,the efficiency of litigation procedure and the basis of liability occurrence between the two.Supplementary liability has the function of the flexibility and fairness that other three liability modes do not possess,which is an institutional innovation of tort liability form.The principle of imputation of the supplementary liability for tort applies to the principle of fault liability.In terms of the subjective elements,different subjective faults between the direct infringer and the supplementary liable person establish different tort liability,which can be divided into three situations: Firstly,in the case that both subjects are subjective intent,if it is direct intent,it may constitute joint and several liability for joint tort.If it is indirect intent,it may establish supplementary liability for joint tort;Secondly,in the case that both subjects are subjective negligence,if there is no negligence correlation,the individual liability for tort should be established,and the individual liability for tort should be established if there is negligence correlation;Thirdly,in the case of the negligence and intent of the two subjects,if the direct infringer intends to make up for the artificial negligence of the responsible person,the supplementary liability will be established.If it is the direct infringer’s fault and the omission actor’s indirect intent,the liability shall be established by shares.Therefore,the subjective state of the supplementary liable person mainly consists of three types: Negligent negligence,overconfident negligence and indirect intent of indulging the consequences of damage.In terms of the objective elements,the tort of the supplementary liable person has the dual characteristics of indirect tort and omission tort,and its sources include three kinds: The first is the duty of danger prevention stipulated by law,including the duty of supervision over a particular third party and the duty of prevention and exemption from tort committed by a third party;The second is the contractual obligation of the risk prevention,which includes two situations: The obligation of the security arising from the contractual relationship and the extension of the obligation of security based on the contract;Third,the duty of the danger prevention in management duties.In terms of the elements of causation,the supplementary liable person usually participates in the causation process passively by omission,and causation embodies the attribute of concurrence and indirectness.In judging the causes of the intervention,the predictability of risk determines the establishment of the causality of supplementary liability.The third party’s tort does not constitute a reasonable response to the defendant’s act,and the intentional tort does not constitute an "External cause that cannot be attributed to the defendant".The types of the supplementary liability for tort in our country are mainly scattered in the provisions of the law and judicial interpretation.There are not many overall types,and the scope is limited.The system is not systematic.Although scholars in theoretical circles try to classify it from various angles,they do not have much practical value for that they do not consider it systematically and practically based on the classification of types.Based on the nature of the supplementary liability for tort,its classification should be categorized from the causes of liability and clearly stipulated in legislation.The way is to establish general clauses of supplementary liability based on the basic connotation of supplementary liability for tort.On this basis,the supplementary liability for tort is divided into three categories: the supplementary liability for tort based on legal obligation,t the supplementary liability for tort based on incidental obligation and the supplementary liability for tort based on professional trust.Then on this basis,the specific types of each category are refined,and the supplementary liability type system is finally constructed.Rules of the supplementary liability for tort,including sharing rules,rules and rules of litigation three parts.In the sharing rule,the share sharing rule between the supplementary responsible person and the intentional infringer should be established according to the level of the fault;Outside the legal relationship of tort,supplementary liability for tort can be included in the liability insurance system to realize socialized risk sharing and maximize the protection of the rights and interests of victims.For the right of recovery of supplementary liability for tort,“Tort liability law” should be unified with judicial interpretation and establish the unilateral right of recovery of supplementary liability in legislation.The litigation rules of the supplementary liability for tort are to determine the form and procedure of supplementary liability through judicial channels.The infringer should be given the right to choose the mode of prosecution.On this basis,various litigation paths are integrated to clarify liability relations,liability shares and order of bearing through the same lawsuit.At the same time,the corresponding reconciliation and mediation restriction procedure,the execution order guarantee procedure and the obligee’s execution objection procedure are established.