On The Liability Caused By Unknown Objects From High-rised Buildings

The promulgation and implementation of Tort Liability Law of People’sRepublic of China（hereinafter referred to as “Tort Liability Law”） is an importantmilestone in the history of Chinese legislation. This law has not only offered generaland detailed provisions for the issues of tort in our civil law, but also made someinnovative ones, and the Article87of the Tort Liability Law which is referred to as“Tort Liability Caused by Unknown Thrown Objects from High-rise Buildings” isone of the innovations.There are two different views on the Liability Caused by Unknown ThrownObjects from High-rised Buildings in the academic world, i.e.“affirmation theory”and “negation theory”. The “affirmation theory” argues that the damage and losses ofthe victim should be indemnified by all the users of the building，while the “negationtheory” hold that such cases should be dealt with as cases of general tort liability.This writer holds that the liability system theory is based on the theory of “damagemust have relief” and the indemnification function of Tort Liability Act. Althoughthe system set up a uniform standard of decision for such cases and effectively settlesuch civil disputes. But it still exist some insufficiencies, for example, the wording isvague, and the applicable conditions and the assumption of responsibility are notclear and so on. These problems may lead the system to be abused, which is contraryto the initial legislative purpose.Article87of the Tort Liability Law provides that the establishment of theliability for the Liability Caused by Unknown Thrown Objects from High-risedBuildings shall meet the following requirements:(1) there is behavior of throwingobjects from high-rise buildings;(2) the victim has been seriously injured;(3) It ishardly to determine the specific tortfeasor;(4) the users of the building fail to prove they are not tortfeasor. But in the academic world, there are different points of viewsto the understanding of the above requirements. s For example, whether the placewhere the behavior throwing objects happened shall be limited to the building ofdistinctive proprietary over the building? whether the damage suffered by the victiminclude property damage and mental damage? How to determine the standard that it ishard to find out specific tortfeasor and the sufficient exemption, etc. The writher’sopinions are as below: The behavior of throwing objection must occur above thebuildings, but the buildings referred to herein should not be limited to that ofdistinctive proprietary over the building. Damage suffered by the victim should reachthe standard of criminal case, and damage of the victim shall include personal injuryand damage to property, but not include the psychological damage and pure economicloss. Such cases must first be investigated by police in the criminal investigationproceeding. Subject to the police failed to find out the actor, the victim may file anaction with the courts under the Article87. The users of the buildings may bedischarged from liability by objecting the construction of requirements of suchliability or proving the existence of statutory exemptions.In the juridical practice, the court take with the "(house) owner" as defendant.The writer holds that it is kind of flexible approach in juridical practice that, insteadof "natural person", the "(house) owners" is taken as defendant, which have the effectthat cut down the amount of parties involved in the case and improve juridicalefficiency. In order to make the victim fully indemnified, where the owner of thehouse were not the actual user, the victim may request building owners and the actualuser to undertake jointly and severally the liability of the "(house) owners". Thewriter also emphasizes that the basic of the liability that the users of the buildingundertake is moral, rather than jural, and that the users of the building shall assumethe liability respectively, rather than jointly and severally. If the victim or the usersfind out the actual actor, they shall have the right to claim recovery against the realactor.The approach that settle the disputes of damage or losses caused by UnknownThrown Objects from High-rise Buildings. It will solve the problem should not belimited in the way within the scope of civil law. The state ought to establish multiplex dispute settlement mechanism system. On one hand, tort liability law should beimplemented together combined with the criminal law, procedure law, andadministrative law departments such as laws and relevant, regulations to, establishmultiple legal protection system. On the other hand, it is necessary to establish andimprove perfect the social insurance security system, which. The social securitysystem is important into keeping protect the normal lives and survival securityproperty of citizens safe.