Discuss The Throwing Liability From The Building When The Inflictor Is Uncertain

The responsibility of the building is one kind of most ancient torts,and at the same time it is one of the special torts which countries all over the world generally stipulate too. With the social development of our country, the urbanized step speeding up, the increase of the high residential building, the event caused by throwing something from the high building to injure somebody occurs now and then. In a situation that the inflictor is clear, this is a general tort, the inflictor itself undertakes the responsibility. But in a situation that the inflictor is uncertain, this kind of torts becomes the applicable vacuum of the law.From one typical legal precedent done by the Yuzhong Chongqing district court in2000, it inclined to let all households bear joint liability in the practice and the theory. The purpose of the author writing this article is to discuss whether it is reasonable in terms of the jurisprudence and the law economics, and put forward his own legislative suggestion on this basis used for reference for the law of liability for tort being in draft to some extent.The argument of my thesis is that it lacks the sufficient legal principle basis,and will cause the waste of the social cost too, therefore is a kind of inappropriate method if the court lets the owners of the building bear joint liability in a situation that the inflictor is unidentified. Materially,the responsibility of the inflictor unidentified embodies a conflict between the inhabiting right of the resident and the public security anticipation right of the pedestrian .Finally it is a problem about dispersible risk and the benefit balance. Herein, it can adjust through the legislative policy.This text is divided into three chapters altogether. Chapter one, the author analyzes this kind of torts from the jurisprudence angle. This article defines the properties of the thing to be throw from the building and made injure to the pedestrian at first, and confirms the foundation of this text. The responsibility of the building is different from the throwing responsibility. The throwing responsibility materially is"the behavior"infringement, but not"the thing". The two kinds of torts should be applicable to different legal rules. Then, the author have comprehensively analyzed the six theories that lets the owners bear joint liability, pointed out that a few theories are untenable because of applicable law mistake, however, other theories have rationality in some certain, but lack the sufficient legal principle foundation at the same time.Chapter two, the article uses the principles and concepts of the law economics to analyze the throwing infringement responsibility. The conclusion drawn is that it is feasible for the residents to undertake the obligation to safeguard the public security and prevent it from damaging in a certain limit looking from the social efficiency maximization angle. At this degree, the inhabitant's The legislation suggested encourage. But if the inhabitant undertakes the duty of prevention to surpass a fixed point, then the marginal cost is bigger than the marginal revenue by far. It will only cause the waste of social resources. The author believes that the spot which causes the inhabitant marginal revenue reduces is the building responsibility scope. So the inhabitant takes the duty to the pedestrian also to be supposed to be limited to this. In order to realize the social income maximization, the law must tolerate fortuitousness (accident) existence.Chapter three, the author draws up some provisions about the building responsibility and crashing responsibility after analyzing the first two chapters and the world legislation. My thinking is that the two need to meet each other half way for coordinate the conflict right between the resident and the pedestrian, rebuilding the legal peaceful state. The author aggravates the obligation of the inhabitant in the legislation to maintain the public security and prevent the harm from happening , change the throwing infringement to the crashing infringement. Both the building responsibility and the crashing infringement implement to no-fault liability in order to reduce the occurrence of the crashing infringement event. But the responsibility of the inflictor's unidentified has gone beyond the adjustment category of the law of torts. It should be realized by social security and life insurance to victim's relief.