Tort Liability For Obstructing The Traffic In Public Roads

Tort liability for obstructing the traffic in public roads is one of the new types of liability stipulated in Article 89 of Tort Liability Law of P.R. China, which belongs to the special tort liability and is included in the liability for object damage. But there has been debate on subject of liabilities and imputation principle. The interpretation on some issues concerning the application of law of road traffic accident damage compensation cases issued by Supreme People’s Court through the Nineteenth Judicial Interpretation in 2012. It clearly stipulated the subject of liabilities and imputation principle of tort liability for obstructing the traffic in public roads, but not for the dispute to an end. In judicial practice, the problems of judicial practice that how to define the managers of the public roads and whether they perform the obligation of manage management and maintenance still have not completely resolved.In this paper, with two problems encountered in judicial practice oriented, it emphasizes the judicial practice analysis, and puts forward ways to resolve the problem from the judicial point of view on the basis of analyzing the problems. Based on the analysis of the relevant dispute cases announced on China Court Net, the type description of the managers in public roads and the demonstration of imputation principle of them, this paper puts forward ways of definition of the subject of public roads and standards whether they perform the obligation of management and maintenance, and puts forward some suggestions to improve the responsibility system of the managers of public roads. In addition to the introduction, this paper is divided into the following parts:The first part, mainly through the analysis of two cases of tort liability for obstructing the traffic in public roads announced on China Court Net, puts forward two problems which are common in judicial practices:the first problem is how to accurately identify managers of public roads due to a variety of different types of them; the second problem is how to examine whether they had perform that obligations, though having proposed evidence to prove they fulfill the obligation of management and maintenance.The second part is based on questions in the first part of case analysis. In this part, according to the law, regulations and judicial interpretations, it expounds the legal basis for definition of the subject of managers in public roads. At same time, combined with twenty case judgments about tort liability for obstructing the traffic in public roads, it analyzes and concludes the situation and characteristics of the disputes of tort liability for obstructing the traffic in public roads. On this basis, it concludes nine kinds of managers of public roads: Transportation Authorities, Highway Authorities, Township People’s Government, Municipal Engineering Department, Road Management Enterprises, Road Maintenance Companies, Road Construction Companies, Road Construction Unit, and Property Management Companies. And then it puts forward four kinds of ways to define the managers of public roads. First of all, define the managers according to the law. Then, on this basis, define them according to the contract if you have made it or in accordance with the operating behavior. In addition, if the road is under construction, construction behavior will be the key factor to define them.The third part is based on the problem of the second case referred in the first part, which fellow the second part as a problem of liability judgment. The third part takes the imputation principle of public road managers as the breakthrough point. This part makes a special effort to demonstrate the justification that the public road managers are suitable for fault-presuming principle, by describing relevant laws of imputation principle of tort liability for obstructing the traffic in public roads. Based on the description of whether paid use, the requirement of road operation and the level of road management and maintenance, it analyzes and demonstrates that different road mangers have different kinds of obligation of management and maintenance. And then, from the judicial point of view, it puts forward review standard of the obligations of the public road managers:firstly, make the responsibility of public road managers clearly. Secondly, review the evidence as a whole according to the responsibility of public road managers, in case you may represent the whole and go to the extreme. Thirdly, distinguish obligation of management between among different managers and reasonably determine the size of responsibility of the road manager.The fourth part is mainly based on the conclusion of the second and the third part. And it makes suggestions to improve the responsibility system of the managers of public roads. The first suggestion is made for the public road managers and that is about how to perform the obligation, such as fulfilling the obligation of management and maintenance entirety according to the relevant laws, increasing the transparency of management by accepting social supervision, raising awareness of the burden of proof to adapt to fault-presuming principle, improving the effect of management and maintenance and the proof ability by using high technology. The second suggestion is made for further improving the judicial interpretation, such as it should be stipulated that public road managers shall bear tort liability, while allowing the managers to take burden of proof to prove that there are other public road managers. In addition, it should distinguish the responsibility among different road managers. The obligation of management and maintenance of the highway managers is more strictly than ordinary road managers. The responsibility of managers of turnpike is significantly greater than the one of the managers of toll-free roads. Generally, as to tort liability for obstructing the traffic in rural roads, the infringement should be liable to compensation liability.