Study On Infringement Supplementary Liability

Infringement supplementary liability，as unique in China, is also the innovation ofcomparative law. The judicial interpretation on compensation for person damage and TortLiability Law, which are passed in2003and2009respectively, have both stipulated theinfringement supplementary liability, which mainly aims at settling the disputes arise fromsharing liability between the omission infringement and the third direct infringement.However, as the legislation of infringement supplementary liability is still at the initial stage,the theoretical study on it is relatively week and many problems exist in the judicial practicewith regard to decree of supplementary liability. Therefore, the in-depth study oninfringement supplementary liability is of important theoretical value and realisticsignificance.This paper consists of three parts, namely introduction, text and conclusion. The text isdivided into five chapters.The first chapter discusses the origin and nature of infringement supplementary liability.The investigation is conducted from the perspectives of comparative law and legislation andjustice in our country. Through commenting on representative academic perspectives, theauthor puts forward the concept of infringement supplementary liability. Infringementsupplementary liability is referred to the liability beard by the person who has obligationswhen the direct perpetrator is not sure or the direct perpetrator can not be totally liable fordamages, because the person who has obligations makes the direct tort complete all thedamages for his negligence tort. But the supplementary responsible person has the right ofrecourse. While discussing the nature of infringement supplementary liability, the authorintroduces the concept of risk liability.The second chapter gives analysis of the foundation and value of infringementsupplementary liability. When analyzing the foundation, the author proves the legitimacy ofsupplementary liability by comparing two elements, with the reason and the fault included.The value of the liability mentioned above is reflected through enriching forms of tort liabilityinvolving various parties and balancing the interests among the subjects.The third chapter analyses the constitutive requirements of infringement supplementaryliability. Given the constitutive requirements of such liability in question should be differentfrom general tort constitution, the author proposes the infringement supplementary liability constitution consists of five elements, namely tort of a third person directly causes the damage,the actor violates the obligation, the person with obligations is at fault, there is a causalrelationship between omission and damages and the direct liable person is not sure or can notbe totally liable for damages.The fourth chapter elaborates on typification of infringement supplementary liability, forthe purpose of which the author firstly analyzes the range of the supplementary liability in theTort Liability Law. The author considers that the guardian’s liability is not infringementsupplementary liability under certain circumstances, which includes the supplementaryliability of obligators of security, schools, vehicle owners and labor dispatching agencies.Secondly based on different obligations, tort supplementary liability is classified into twocategories as follows, the supplementary liability held for not preventing a third person fromdoing harm to others and not protecting others from injury by a third person.The fifth chapter discusses the implementation of infringement supplementary liability.In this part, the author states the implementation in the trial and executive procedure. Andright to recourse after the accomplish of infringement supplementary liability is alsoelaborated.