On The Supplementary Liability In Tort Law

As a bold and reasonable innovation in the field of tort law, the supplementaryliability is not only a product of long-term accumulation of experience in judicialpractice, but also the wisdom of civil-law scholars. The appearance of thesupplementary liability dispose the difficulty that the joint and several liability andthe proportional liability can not be applied in some special tort cases, enrich tortliability form and make the law more flexible in dealing with Infringement casesimplemented by many people. As a new type of infringement liability, the theoreticalbasis of the supplementary liability is still weak, the provisions of regulation aresimple and fuzzy, and the operating system is also facing many problems. Thereforewe should do more researches on the basic theory of the tort supplementary liabilityto make it perfect.The first problem I want to study in the paper is the meaning of tortsupplementary liability. In order to do further research, this problem must be solved.The most important and the obvious characteristic of the tort supplementary liabilityis the supplement in order and entity, which makes it distinguished from other formsof tort liability. Only when the directly responsible person can’t be found or does nothave the ability to compensate, the supplementary-liability person should take therest of the responsibility for damages caused by his own infringement acts.After we know the meaning of the tort supplementary liability, the secondproblem we should study is its applicable scope, which means its living space in thefield of tort law. The scope of application has something to do with its survival, sothe problem is the key point of the paper. In this section, I use the method ofinductive reasoning to solve this problem. First I find three types of infringementwhich should apply to supplementary liability in the Chinese tort liability law. Byanalyzing their common point, I find the common behavior pattern of the three typesis the third party’s tort with the violation of security obligations. In such tort cases,the Joint and several liability, the proportional liability and the unreal Joint and several liability can’t be applied, but the application of supplementary liability hasthe advantages of equity and efficiency. From what has been discussed above wemay draw the conclusion that the applicable scope of tort supplementary liabilityshould be extended to the cases where the damage is directly caused by a third party,and the security obligor also violates security obligation. According to the provisionsof the tort liability law and the content of security obligation, I lists several typicaltort cases where the supplementary liability be applied.At last, I pay my attention to the problems found in the operation of the system.Because the two liability subjects assume tort responsibility in order, the courts hearthose cases by two separate actions or one necessary joint action. Because theobjects of the two cases are different, necessary joint action shouldn’t be used inthese cases in traditional theory. I adopt correlative necessary joint action to solvethis problem. Besides, from the perspective of fairness, the supplementary-liabilityperson should enjoy the recovery right. The recovery right is inherent in the designof the system, and supported by legislation and juridical practice.