On The Supplementary Liability In Torts Law

The supplementary liability in torts law is a creature of juridical practice in China. It is a new form of liability booming from 1990s. The theory is summarized and applied by judges. The name of the liability is also endowed by judges and has been confirmed by a few juridical interpretations. It is farfetched to confuse it with the non-genuine joint and several liability else. The thesis sums up most contents of active laws and rules and juridical explanations. The supplementary liability may arise from relation of involved parities, the contract relationships, the broke-up of the legal obligations and the fault prior actions. The supplementary liability in torts law may arise from the concurrence of the implementation of legal or promissory obligations and the happening of torts actions. The main topic of the thesis is the supplementary liability arising from the implementation failure of legal debts. The thesis is interpreted languages firstly. It is based on the juridical explanation of compensations for body injuries. The thesis does not analyze why the supplementary liability arises. The thesis does not analyze the interests of all involved parties but try to distinguish the applications and results of the supplementary liability in torts law. The innovation in legislation of the thesis is that the compensation to mental injuries isn't necessarily involved in the supplementary liability which is on the base of the consideration to the intent of legislators. The thesis also denies the limitation to the supplementary liability in the judicial interpretation of compensations to body injuries. The thesis develops its theory in two steps. Firstly I treat the actions disobeying the obligations of safety protection as a kind of single tort. Then I think of the inflictor and discuss the relationship among the inflictors and the victims and the persons who shoulder the obligations of safety protection. The logic and framework of the thesis is as follows in detail.Chapter one differentiates and discriminates the concepts. The supplementary liability is a concept beyond torts law and it's not a mature theory but lies in all kinds of rules and practice. The thesis talks much in this chapter in order to confirm a clear extension for the following text.Chapter two expatiates the necessary elements of the supplementary liability which is the main body of the thesis. I don't think the three elements theory of general torts structure is wrong. The supplementary liability in torts law is based on the non-behavior breaking the obligations of safety protection which is not an existence but a result of value estimate. The discussion on causation and fault will lose its base without the discussion on the non-behavior. So the thesis applies the four elements theory. The thesis remarks on the illegal behavior element and fault element separately although they are not different evidently.I. Illegal behavior. It is breaking the obligations of safety protection why we regard the supplementary liability as illegal. The duty of safety protection is legal duty indeed since the juridical interpretation on the compensation to body injuries. It is a legal duty not only in private law but in public law. Its logic and base of appliance is close to the negligence tort in common law.II. Fact of damages. Fact of damages of the supplementary liability in tort law is not the same to the damages suffered by the victims because the damages are not caused directly by the person bearing the supplementary liability. The extent of fact of damages lies on the extent of the obligation of safety protection. The thesis does not think the compensation to mental injuries is in the field of fact of damages which is a question of value judge.III. Causation. This section analyses the way of thinking of a judge about the non-performance of obligation of safety protection in practice by enumerating three representative cases. The thesis thinks that the causation should not only be based on but develop the traditional causation theory. I firstly distinguish the direct causation and the indirect causation of causations of damages in order to interpret the supplementarity of the supplementary liability. Secondly I confirm the propriety of indirect causation by the way of proper causation theory.IV. Fault. The non-performance of the obligation of safety protection is equal to fault. The plaintiff should take out the evidences. The thesis differentiates intent of non-behavior and negligence. I think one should bear the direct tort liability other than supplementary liability.Chapter three limits the extension of the liability and analyzes the ways of bearing of it. The thesis thinks the rules about the extension of damages that can be avoided and refrained is not the limitation to the extension of the liability but equal to the discussions on causation and fault. We can limit the extension of the liability using the rules of compared negligence and the limitation to the compensation to mental injuries and the foreseeability. The supplementary liability must add the common defendant which is the difference with the non-genuine joint and several liability in litigation. The supplementary liability is companied with liabilities concurrence traditionally. I think the supplementary liability may deny the appliance of contract liability because it has compared the interests of all parties exactly.