Research On The Article21of Tort Law Of The People’s Republic Of China

In the year of1988, Opinions of the Supreme People’s Court on Several Issuesconcerning the Implementation of the General Principles of the Civil Law of thePeople’s Republic of China (For Trial Implementation) was made, which brought uspreventive claim right for the first time. Though the article154only applies to highlydangerous work, the application of the rule helps the judges settle up a lot of disputeswhen damage is very likely to happen. In recent years, with the development ofeconomy, people need this way of relief more than before. In our country, CopyrightLaw, Patent Law and Trademark Law also have this kind of legal provisions. Thearticle35of Real Right Law of the People’s Republic of China provides that where areal right has been or may be obstructed, the right holder may petition for removingthe impediment or eliminating the danger. Those provisions above only apply tospecific right or particular case. The article21of Tort Law of the People’s Republic ofChina changes the situation.Around with the subsistent problems in application of the article21, the paperconsists of three chapters as follows:Chapter I is about taking a demonstration study on article21.The article21provides that Where a tort endangers the personal or property of another person, thevictim of the tort may require the tortfeasor to assume the tort liabilities including but not limited to cession of infringement, removal of obstruction and elimination ofdanger, whether or not this one should be provided. Based on the history, function andsignificance, this part of the paper proves it is necessary.Chapter II is about four questions in the application of the article21.Questionone is how many methods of bearing tort liability in the article21.Question two iswhich principle of liability should be apply, principle of liability for wrongs orprinciple of liability without fault? Question three is weather the article21should belimited by time. Question four is how to deal with the relationship between the article21of Tort Law of the People’s Republic of China and the article35of Real Right Lawof the People’s Republic of China. By gathering and analyzing the major theoreticalviewpoints, the paper point out inadequacies in existing the theoretical viewpoints.On the other hand, it learns from foreign experience in a typical legislative andjudicial practice, and lastly it puts forward some related legislative proposals in viewof the current legislation in our country.Chapter III is author’s proposals based on the problems above. The principle ofliability without fault should be used with the article21.The exercise of rights shouldnot have time limit. And after searching relevant legislation and judicial interpretationin our country, the author explains why it is necessary for our country to make theseprovisions. Finally, the author also advises that our country should establish our ownsystem of interim injunction in Civil Procedure.