On The Mode Of Tort Liability In Civil Law In China

The tort Liability Law of the People's Republic of China (article 15) has divided the tort liabilities into eight types, i. e. stoppage of trespass, removal of jeopardize, elimination of danger, returning of property, restitution, compensation for the loss, apology, elimination of influence and restoration of reputation. And the form of the provision could be traced back from provisions on the General Principles of the Civil Law of the People's Republic of China.Scholars have different views towards the applicability of the eight types of tort liabilities. The essence of the controversy lies in the different perceptions toward the relationship among the components within the civil code. The views towards these relationships could be categorized into three: the claim of torts absorbs the claim of real right mode; the claim of torts and the claim of real right exist side by side mode; concurrence of the claim of torts and the claim of real right mode.The article looked into the function of the tort Liability Law, as well as the legislation of several nations, and made a conclusion that damage compensation is the most important function of tort law either in the civil law system or common law system, with China as no exception. The types of tort liability and the function of tort law are closely related. As the former reflected the latter and the latter determines the former.As a civil law country China has received the theory of German law. In the meanwhile, the existing civil legislation in China was much influenced by the General Principles of the Civil Law. The claim of torts absorbs the claim of real right mode is based on the General Principles of the Civil Law, and the claim of torts and the claim of real right exist side by side mode has the jurisprudential background of German law. At the beginning of the essay, the terms on tort liabilities from the German Civil Law and General Principles of the Civil Law have been compared. And the essay later probes into the forms of the tort liabilities so as to find the problems and solutions. The essay finally draws a conclusion that the claim of real right separated from the claim of torts could be a reasonable way to protect the rights.