Research On The Liability Subject For Damage Caused By Domestic Animal

Damage caused by domestic animal is one of torts occurring frequently in dailylife. In order to better regulate the behavior of feeding animals, Tort Law of thePeople’s Republic of China (hereinafter referred to as Tort Law) improvedthe legislation related to animal damage of General Principles of the Civil Law of thePeople’s Republic of China (hereinafter referred to as General Principles of the CivilLaw),and stipulated Liability for Damage Caused by Domestic Animal as a separatechapter.Yet Tort Law still prescribed the Liability subject as “keeper” or “manager”.This provision is not rigorous and has many problems, such as the legislation on the“keep”,“management” does not give special legal implications, there is no affirmingstandards and so on. Because of failing to give clear standards on judging theliability subject, there are many controversial opinions in judicial practice. However,chinese scholars seem to be a lack of sufficient interest and study-in-depth in thisancient civil liability system. Scholars have different academic perspectivesabout how to make the interpretation on “keeper” and “manager” and toapply in judicial practice, one of the more mainstream view insists that we can learnfrom the concept of Harborer of German Civil Law. However, we will find that thesituation is much more complex after a comprehensive study on tort law in differentcountries, such as the use of “owner” or “user”,“possessor” all have their legislativesupport. Meanwhile, from the legal provisions of our country can be seen, thelegislation does not fully accept the concept of Harborer. In addition, somescholars conclude the standard of the European countries for determining Harborer, but the interpretation of the standard itself in different countries ordifferent legal system is bound to be different. If the dangerous derived fromanimal come into reality, although the liability subject will be not easily affirmed,judges should not refuse to decide it. To solve this problem, the main content of thispaper intends to carry out from the following four parts:Part Ⅰ, for the problem raised. Issuing on the background and the necessityof the problem by combining domestic and foreign relevant research and practice etc..Part Ⅱ, the legal definition of the animal. In order to make the tort lawapplicable to animal damage and provide relief to the victim, it is necessary to makeclear definition to the animal firstly.part Ⅲ, the dispute and clarification of the liability subject in legislation andrelated theory. This part based on the research on the judicial precedents and otherparts proposes that despite the “keeper” and “manager” are in the same clause, but inorder to determine the liability subject, we should judge “keeper” and “manager” bydifferent standards which should be distinguished from Harborer of German CivilLaw. Through the comparison between the legislation in different countries, thispaper puts forward a standard to determine the "keeper", and the “manager” isdetermined by the basic legal relationship such as contract with the "keeper". In thispart, the further analysis of determining "keeper" and “manager” will beessential. This part is the main content of this paper.part IV, the discrimination of liability form. Determination of theultimate liability subject is the common pursuit of the theory and practice. Thispart will analyse joint and several liability in the case of liability subject for manypeople.Holmes once said,“the life of law is not logic, but rather experience.” Suchexperience comes from a variety of typical cases in judicial practice. This paperbegins with a typical animal damage case that the news media reported in early2012.We will get useful references by analyzing the legislation and theory of civil law andcommon law,which is benefit to legislative improvement of our country.