Research On Legislative Mode And Application Of Chinese Tort Liability Law General Provision

Tort Liability Law of People's Republic of China has been adopted at the twelfth meeting of the Standing Committee of the eleventh National People's Congress of China on December 26th, 2009, which undergoes seven years and four times consultations, and become effective on July 1st, 2010. The official adoption of Chinese Tort Liability Law is fundamental to the construction on rule of law in China, and it is another important basic civil legislation after the adoption of Chinese Real Right Law. Nevertheless, it is noteworthy that Chinese Tort Liability Law was hurriedly adopted by the legislature when there still remain differences and disputes on many issues of this law from public and scholars, which may bring drawbacks and deficiencies to this law, especially in terms of legislative mode and application of Chinese Tort Liability Law.Therefore, this thesis aims to conduct a thorough analysis on current problems in terms of elements, scope of protection, application within and out of Chinese Tort Liability Law general provision by comparing different legislation concerning tort law general provision in other countries and combining the tort law legislative environment in China. And based on the above mentioned analysis, the author makes some improving suggestion and solutions to the problems. This thesis can be divided into four chapters:Chapter One firstly discusses the significance and importance of this topic, and then reveals problems which need to be analyzed in terms of legislative mode and application of Chinese Tort Liability Law general provision, namely Article 2 so as to present the theme of this thesis.Chapter Two analyzes the existed problems concerning legislative mode of general provision in terms of elements and scope of protection based on the comparison on enactment of general provision between different countries, and argues that Article 2 of Chinese Tort Liability Law is not a full general provision due to its deficiency on elements, and the unlimited scope of protection specified in this article is also a big drawbacks.Chapter Three mainly examines the existed problems concerning the application of general provision from internal structure and external structure of Chinese Tort Liability Law, and points out that as to the internal structure, the compensation liability specified in Article 6 & 7 and other methods of taking tort liability specified in Article 15 shall be further coordinated through Article 2 of Chinese Tort Liability Law. And as to the external structure, Article 2 of Chinese Tort Liability Law shall be further coordinated with relevant provisions specified in PRC General Principles of Civil Law and Real Right Law.Chapter Four gives the relevant improving suggestions and solutions to the existed problems of legislative mode and application of Chinese Tort Liability Law general provision, and recommends that it is necessary to stipulate different elements to the tortious acts that infringe the civil rights and interests specified in the general provision so as to limit the scope of protection. And this chapter also suggests to defining the inconsistency between Chinese Tort Liability Law and relevant laws in terms of application through supplementary provisions.