Buildings Unknown Thrower Infringement Issues

Since the reform and opening up, China’s rapid economic development,accelerating the process of city, city scale expands more and more, and with the rapidexpansion of the scale of population, prompted many many-storied buildings, due tothe emergence of high-rise buildings with clear infringement case often is notuncommon, in social problems in today’s the society is more and more serious andprominent, the social from all walks of life have made a lot of reflection. At the sametime, because the modern society there are many buildings are used to distinguish allthe States, different and easy to judge infringement the kind of independent doorcourtyard, after throwing out equally difficult in building tort casual finds a ownerstaking responsibility, thus causing a tort is not easy, so building because of throwingobjects produce tort has increasingly become an important content of modern tort law.In this article the method of legal interpretation method, value analysis,historical analysis method and comparison method to complete the comprehensiveanalysis, in-depth study of relevant knowledge on the clear infringement liabilitybased on the other countries, how to determine the nature of unknown tossed objectinfringement behavior are studied deeply, and on this basis put forward relevant legalsystem construction in China, the clear infringement liability. Specific analysis ofspecific rules applicable legal provisions of different. On the legal structure designbetter, this paper explains the reasons of legislation "tort liability law" in articleeighty-seventh, then analyses the reasonable terms of local and regional defective, theprovisions of relevant legislation suggestions made. This article is mainly composedof the following four parts:The first part: introduces the causes of the clear infringement problems: with therapid development of high-rise buildings and part of building use people lack of moralself-discipline of. Because of this kind of infringement is hard to determine, so will beto the detriment of few rights to ensure social security order and public securityinterests. The tort liability of the clear, required by the individual case study to controlnow this kind of problem, and do in-depth research to build the effective system of victim relief mechanism, prevention, avoid the effective social security problemscaused by it. Then reviewed the domestic and foreign research about the clearinfringement problems, puts forward the research mentality and the frame.The second part: the analysis of the clear infringement from the theory angle.Characteristics of this type of behavior is the distinction between ownership of thebuildings falling, due to human causes, and exhausted all means can not find the realperpetrator. This paper makes an interpretation of the concept: the clear infringementis not exactly the same as stipulated in the "tort liability act" provisions of articleeighty-seventh, article eighty-seventh also includes the buildings or other facilitiesand buildings on the use of material, hanging objects liability, damage to buildings isnot clear not throwing objects and object infringement problems distinguish. Andaround eighty-seventh of "compensation" principle proves "rationality of distributionjustice".The third part: comment on "tort liability law" article eighty-seventh. Firstintroduces three main views of law in the law, that the position of the author:supported by the users of the building who may give appropriate compensation. Butthe damage in cannot point can also litigation specific tort damage caused by thesituation, and effectively safeguard the rights of the victims. Then analyzed therationality of this article: the allocation of the burden of proof to consider both abilityand responsibility to determine the size of the equitable liability principle; not onlyremedy the victim, but not the responsibility of the troubled life. Finally put forwardthe law applicable to the dangers facing the confusion problem: the burden of proof isdifficult to confirm and judicial practice.The fourth part: the idea of legislation of the tort liability of tall buildings. First,from the current "tort liability law" article eighty-seventh, is actually the presumptionof fault of the defendant, the burden of proof the plaintiff was weakened, the plaintiffshall remain in the sense of the defendant has fault shall bear the burden of proof.Second, the author does not agree with the owner into responsibility main body, thiskind of case responsibility main body law shall specify who can use may harm thebuildings. Third, the author thinks, safeguard mechanism should take the prior to be part of the existing mechanism, can not guarantee the part, then the possible harmsharing more reasonable. If in the "tort liability law" article eighty-seventh and thenanother one, points out that the various kinds of insurance mechanism to compensate,can be appropriate relief may harm shall bear the compensation is more appropriate.Conclusion: the damages in the field, the law can not be independent of support.To improve the clear infringement of the legislation, to get rid of the currentpredicament, must with in the formation of social security mechanism and all kinds ofcommercial insurance compensation mechanism, risk is not clear the liabilitydispersed in the mass, so that the interests of the victims is more security, at the sametime, maintain the normal order of China’s social harmony, justice, equitabledevelopment, which is also one of the tort law and legal system construction of theimportant issues.