A Comparison Of The Cognizance Of Tortious Liabilities In Cases Of Things Thrown Off Buildings Between P.R.C. And U.S.A.

What is the appropriate decision for law in the face of the victim and the multiple defendants in cases of things thrown off buildings? It is a hard question. In order to find out the answer, this thesis is divided into five chapters.In chapter I, six representative cases taken from China and America have been categorized into three types. It is found that the last type, the building belonging to more than one person, is the most difficult one when liability to be fixed on.In chapter II, three types of theories have been made out in this article from the judiciary practice in China and America, which are named as Presumption of Causation, Presumption of Fault and Res Ipsa Loquitur. At the same time, some typical views arising in China also have been examined. In order to understand the doctrine of Res Ipsa Loquitur clearly, its establishment, legal effects and conditions have been talked about in detail. Besides, some questions, such as the accessibility of information and multiple defendants, have been analyzed according to some famous American cases and writings.In chapter III, comparing the similarities and differences between the theories in China and America, the author points out that Res Ipsa Loquitur and Presumption of Fault share the same characters not only in preconditions, contents of the presumption and immune conditions, but also in spirits and objectives. Accordingly, the two doctrines should be treated equally. Contrarily, Presumption of Causation is different from the other two, and should be treated in another way.In chapter IV, the three mentioned theories have been fine-drawn in three areas: allocation of burden of proof, the function of prediction of law, and legal culture. The author believes that Res Ipsa Loquitur and Presumption of Fault do not change the allocation of burden of proof, and that both of the doctrines accord with the rule of life experience. Unfortunately, Presumption of Causation changes the allocation and violates the principles of law and the rule of life experience. Furthermore, the relationship between Presumption of Causation and the function of prediction of law is absolutely incompatible. On the level of legal culture, despite of some supporting reasons, Presumption of Causation can not be harmonized with justice and will mix up the boundaries and functions of the departments of law.For all the reasons above, the author draws two conclusions in the end. Firstly, in the cases lacking of the certainty of causation, for example, in the cases of things thrown off buildings, the distribution of risks and losses should, more and more, be calculated according to the policies of interests balancing and behaviors orienting, and not be limited in the formulized solutions. Secondly, both Presumption of Causation and Presumption of Fault are reasoning methods dedicated to such a policy-choosing. But, comparatively, the latter is more compatible with the current legal systems and legal principles, and as a result, is more compatible with mankind's pursuit of justice.