Study On The Priority Of Claim Of Infringement In China

Art.4of The Tort Law of the People’s Republic of China provides that "Where a tortfeasor shall assume administrative liability or criminal liability for the same conduct, it shall not prejudice the tort liability that the tortfeasor shall legally assume. Where the assets of a tortfeasor are not adequate for payments for the tort liability and administrative liability or criminal liability for the same conduct, the tortfeasor shall first assume the tort liability." This is made of priority in the legal institution of our country for the first time the infringement claim, is of epoch-making significance to improve China’s civil legal system.Due to the priority of claim of infringement is with "tort liability law" the promulgation of generation, is a relatively new relative right, therefore, for the system of tort claim priority system does not see more. Research on priority paper mainly divided into three parts to tort claims.The first part is to proceed from the priority of China’s claim of infringement of the legislation and the related concept of the angle, the different understanding of "tort liability law" provisions of the second paragraph of article fourth the legal basis for the priority of claim of infringement of the generation and different scholars, analyzed, and summarized, the concept of priority that tort claims right is:the infringe shall enjoy, total property will cause the damage of the infringer to recover damages, administrative responsibility, criminal responsibility prior to the infringer shall assume the property nature of the priority of payment guarantee.The second part is the analysis and thinking of a large number of cases, respectively, from the point of view of the legislation and the realization of right angles, legal regulations of priority to our country related tort claim and the problems in practice made one comments. Summarizes our country tort claim priority system there are legal provisions, the lack of fuzzy remedy procedure, not coordination defects.Aiming at these problems, the third part of the thesis put forward including to amend and supplement the related laws, will be part of the administrative punishment procedure can be brought into administrative incidental civil lawsuit, the scope of moral damage compensation in the incidental civil compensation, to establish the deferred rule of warehousing, the establishment of Treasury restitution system, the establishment of social compensation system, the six legislative proposals.