On The Supplementary Liability In Torts Law Of China

“Tort Liability Law of the People’s Republic of China” enacted in 2009 creatively provides the supplementary tort liability system. The supplementary tort liability refers to the same damages caused by infringement acts of different obligors for one obligee due to different reasons, If the direct obligor can not afford or can not be fully liable, bearing some obligations that do not completely fulfill and indirectly causing supplementary obligors of damages bear liability form adapting their own fault within a certain range. Since supplementary tort liability is an innovation of Chinese legal system, there are some controversial issues in the theoretical study and practical application of liability forms. Therefore, this article discusses the legislative status of supplementary tort liability in China from the basic theory, analyzes the undertaking rules and applicable procedures, makes suggestions about the perfection of supplementary tort liability system based on above discussion.This article is divided into the following five sections:The first chapter introduces the basic theory of supplementary tort liability. Early scholars’ research showed a core element of supplementary tort liability is "supplementary " rule. Based on this, this article redefines supplementary tort liability and further analyzes the characteristics of supplementary tort liability according to the definition. Early theorists elaborate the nature of supplementary tort liability through unreal joint and several liability, general corporation responsibility, but it is not perfect. Taking the view of Independent supplementary liability theory into consideration, it could be confirmed that supplementary tort liability is a new form of independent liability.The second part analyzes the current legislative status of supplementary tort liability. Current legislation provides supplementary tort liability of labor dispatching units, security obligor, and educational institutions. In these three statutory tort supplementary liability, supplementary obligors’ legal obligation has different jurisprudence source, but have some common characteristics among liability establishment and scope of obligation.The third part analyzes the undertaking rules of supplementary tort liability. The undertaking rules mainly research how does obligee require obligors to take the responsibility and what is the scope of responsibility. Discussion on undertaking rules of supplementary tort liability, clarifies how does obligee exercise the right to claim and the distribution of liability between direct obligor and supplementary liability obligor. At the same time, by exploring the basic concept and nature of supplementary tort liability, it is argued that supplementary liability obligor should have the right of recourse to direct obligor.The fourth part focuses on the litigation path and execution rules of supplementary tort liability. Based on the clarification of supplementary tort liability’s undertaking rules, it is further indentified, in supplementary tort liability, the litigation path of prosecuting direct obligor alone, prosecuting supplementary liability obligor alone, and prosecuting direct obligor as well as supplementary liability obligor. And the expression rule of judgment documents in various types of litigation path is also clarified on this basis. Finally, it is argued that the court should insist on the implementation and enforcement of exhaustive overall principles in the implementation of supplementary tort liability judgment, and entitle supplementary liability obligors the right to executing objection.The fifth part, mainly tries to put forward a reasonable proposal to perfect the complementary tort liability system. This part makes some suggestion about perfecting the complementary tort liability on the basis of the previous analysis. Firstly, it is suggested to establish general standards of complementary tort liability, specifing the concept and nature of supplementary liability. Secondly, expanding the application scope of supplementary tort liability, establishing third-party advisory body to consulting supplementary tort liability and other new types of supplementary tort liability according to the need of social practice. Besides, ensuring the recourse right of supplementary liability obligor, which is building the base of recourse right by substantial law, then restricting the conditions and terms of exercising the right of recourse on the procedure.Finally, improving supplementary tort liability applicable procedures, make accurate provisions on litigation path of supplementary tort liability, and establishing executive rules to protect the sequence interests of the supplementary liability obligors.