| The old and controvertial tort , unknown throwing objects from high building causing damages,can be trace back to Roman times.With the development of economy,population has increase as well as the stories.As a result,some passengers passing by would probably damaged by those objects.In this case, it is difficult for victims to identify the specific offender.Seeing from the legal level,the relif of the damage to victims becomes hard.Because the delima is not prescripted legally in specific provisions,it isnot agreed to all in theoritical field, so that this type of cases are harassed in practical field. Such absurd phenomenon as"co-different judgments" and "the same sentence for different reason"emerged.Therefore, the authority and unity of law are challenged,which has aroused much concern and probed into theoritical and practical fields.In Dec.26th,2009, TheEleventh National People's Congress Standing Committee 12th meeting passed The Tort Liability Law,which shall come into force in July1st,2010.The 87th item of the law makes the relavent provisions aimed at solving the above problems.However,the provision aroused much controversy at the very begining,even was considered as a new"sitting method"rule.Here,we come to the basis of the problemIf there is a theoritical point in the situation with unbalanced interest which can adjust the unbalanced system and interest structure and then how to adjust have come into being the unavoided series of corresponding problems,after the setting of the provision.The important point of this paper is that, under the background of the pehnomenon co-different judgments" and "the same sentence for different theories"in the ijury cases for unknown throwing objects from high building in judicial practice,which has been deeply discussed,we take the idea that it is not sensitive to distend the existing requrementsof 87st item,so as to establish this kind of event an separate tortliability type,and then require the"Maybe perpetrator"to bear the corresponding tort liability of infrigement,for fully relieving the victims. The paper firstly aims to analyze the theoretical basis and ligic of the theory and then processes with the trend of"Protecting the Weak"of the modern civil law and the function of tort law.Hence,it turns out to be that thecase can't belong to the separate tort liability type,besides,the relief pattern in not legal and reasonable.Therefore, the writer propose extrajudicial remedies on the basis of the relavent legislation and judicial practice home and abroad. The first part of the essay 's aim is to show such problems as acts of height throwing objects causing damage to people and Tort Libalility Act , the 87th provision ,provided in this regard ,by Judicial practice in the real case.And in the second part of the essay ,the Author make a exhautive juristic definition for this action and make a conclusion for Related features,after summarizing its history of such action and combining scholar's view . Part III and Part IV is where the main focus of this essay lies in. Part III criticizes that it is not appropriate to solve such problems by using the the 126th article of the"Civil Law" and and it makes furthur discussion ablut the deficiency of the tort liability and relief patetern in "Tort Liability Act" 87th . Part III provides evidence for Part IV which Proposes relevant solutions,so it enhances the persuasiveness of the essay.Following Part III, what the Author advocates is that the Approaches to relieve shouldnot be only limited in Tort Liability Act.Social liability inssurance system is gradually taking an important role as a tool to share the accidental injury assurance.Besides,the government should set up corresponding relieving system,which could provide ultimate protection to victims,to insure their legimitate rights and interests.At the same time ,the writer also made a theoretical and practical analysis on the above two extra relieving methods, in hope of providing some references to the future legislation. |
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