Research On Tort Liability Of Gang

Tort of gang is a new trend of joint-torts,mainly involving with civil liability of criminal gangs,under-world organizations and terroristic organizations.Joint liability of gang members has been prescribed in Holland Civil Law or adjudged in cases in some European countries. The similar clause has been put forward by Chinese experts in the legislative proposal drafts of two Civil Laws. If the joint tort liability of gang members can be recognized, which is undoubtedly beneficial to protect the victims and control the unlawful actions of criminal gang.There are still many theoretical and practical issues, however, deserving to be studied further on this completely new regulation. The paper, focusing on liability of gang members, preliminarily discusses the above-mentioned issues. Including an introduction and a conclusion, the body of this thesis can be divided into three parts:PartⅠ: Lacking of standard definition of gang tort at present, so this part aims to provide a basic precondition for expounding gang members′liability, I.e. giving a definition for gang tort. Through analyzing some experts'viewpoints and using logical methods, it can be concluded that the category of tort of gang belongs to joint torts. Comparing it with relative concepts, we educe the differentia and finally define the tort of gang as: Three or more members form a stable and organized gang, whose aim is to commit unlawful actions continuously. All the members should be charged with joint liability for the damages caused by some gang members'behavior under the will of gang.PartⅡ: This part discusses relevant issues on joint liability of gang members. On its property, it is not vicarious liability, but self-responsibility to tort of gang members, so the compensation obligations derived from tort of gang belong to the obligations of group and tort, and the reasons by which Gang members'responsibilities were determined are multiple. Among various theories, the theory of subjective-conspiracy can provide a reasonable explanation to the nature of gang-tort. The reason why gang members should have joint liability lies on that the combination of individual intention build up the intention of gang, meanwhile the intention of gang also control their separate actions of gang members. Then, from the aspects of tort's purpose, action, duty, interest, value and function, the thesis gives reasonable explanations to the justice and rationality of gang members'liability.PartⅢ: This part mainly discusses some issues on the application of the tort liability of gang. Firstly the tort of gang should possess the components of common tort; then the formation of the gang, the members'identifications and criminal actions should be proved. In investigating the identification of gang, the key is to open out the illegal purpose of gang, the stability and configuration of gang, and the durative of the tort. These should be judged by the civil court. The identification of gang members should be investigated from their subjective adscription, loyalty and executive roles to the gang. Whether their own actions belong to the gang tort, we mainly consider their purposes and the occupation of illegal interests. With these evidences, the victims can claim the joint liability of the gang members, meanwhile the defendants also can prove to show the absence of the gang, the incompleteness of their gang members'identification, the individuality of their actions to demur.In the conclusion, the paper suggests that, according to the situation of the tort of gang and the protection of the victims in China, Chinese Tort Law define the gang tort and its joint liability. At the same time, rigid conditions and procedures should be prescribed to prevent the abuse of the joint liability and the unfairness resulted.