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A Study Of Supplementary Liability In Tort Law

Posted on:2016-05-06Degree:MasterType:Thesis
Country:ChinaCandidate:H HuangFull Text:PDF
GTID:2296330479488187Subject:Law
Abstract/Summary:PDF Full Text Request
With the development of society and economy, business activities and public events grow rapidly. Meanwhile violations occurred in hotels, restaurants, banks and other business premises or public places is also increasing. Most of the time, the operators, and managers could have avoided the damage if they’ve adopted an effective security conduct. Due to the lack of clear article on this matter, a judge in dealing with such cases often rely on personal understanding, resulting in a lot of contradictions. Security provisions and obligations in "Personal Injury Compensation Interpretation" and "Tort Liability Act" was introduced in this context. China established a system of supplementary liability to mitigate safety and security obligations in the field of interventional third party infringement. Direct perpetrators assume the tort liability of the first overall pick. In the case that direct perpetrators unknown or insufficient to pay all damages, security obligations in the second pick bear their corresponding complementary responsibility. Supplementary liability differs from joint and several liability, according to copies of responsibility and no real joint and several liability. It plays a unique role in the issue of addressing responsibility and commitment between third party and security obligations.There are three provisions relating complementary responsibilities in China’s current "Tort Liability Law", namely:(1)Article 34, paragraph 2, supplementary liability of labor dispatch party,(2)Article 37, paragraph 2, supplementary obligations and responsibilities of public places managers and organizers of mass, and(3)Article 40, supplementary obligations of schools and educational institutions. Although legislation has confirmed the supplementary liability system, it remains a controversy in the academics. There are two main stream opinions: positive and negative on whether supplementary liability should apply to safety protections obligation. Professor Zhang Xinbao represented school that advocates supplemental liability application. Within the other school, there’s two opinions: one advocates for international practice, and the other assert self-responsibility. Professor Zhang Minan represent the theory of international practice, claiming that requiring security obligations supplementary liability is against the civil law principle of fault liability and compensation of all, contrary to the common practice of comparative law, harm the interests of the victims, and hence should follow the applicable international conventions, " non-common " joint and several liability adjustments. Professor Wang Liming, represented theory of self-responsibility, said the final responsible in supplementary liability is third person, then the fault in the security obligations is actually passed on to a third party liability, which contradicts the principles of self-responsibility. In addition there are many contentious issues: what is the legal basis for responsibility supplement? Supplementary liability whether as an independent form of responsibility? Difference between supplementary liability and other forms of responsibility? How to determine the share of responsibility supplement? Whether supplementary liability has recourse? These problems need further discussions."Tort Liability Law," Article 37, paragraph 2: Due to the behavior of a third person causes damage to others, assume the tort liability by the third person; manager or organizer unfinished security obligations, assume the corresponding complementary responsibilities. Law may seem simple, but there are many problems in judicial practice. It does not specify the degree of fault and force between third party and security obligations, but rather classify all third party intervention into the range of supplementary liability adjustment, which leads to unfair results between the third person and security obligations. Therefore it is crucial to clarify the application condition of Article 37, paragraph 2.In addition to business premises, dangerous increase in public places. Third party violations occur frequently in kindergartens, schools and other educational institutions. "Tort Liability Law" Article 40 provides that: Person with no civil capacity or with limited capacity for civil conduct in kindergarten, school or other educational institution, during life, by personnel outside the kindergarten, school or other educational institution infringement by tort people assume the tort liability; kindergarten, school or other educational institution that fail to fulfill management responsibilities assume the corresponding complementary responsibilities. Both academics and practitioners disagree on how to define supplementary liability schools assume, so we need to study its theoretical basis and applicable case in judicial practice. This paper attempts to angle from theoretical basis, elements, and principles for school’s supplementary liability to conduct a comprehensive analysis. This could specify the responsibilities of schools, strengthening its commitment to safety awareness and security obligations, and relieve the victim’s rights at maximum range."Tort Liability Law," Article 34, paragraph 2: During the dispatch, staff dispatched during the implementation tasks cause damage to others, the labor accepting party shall bear tort liability; dispatching party is at fault, bear corresponding supplementary liability. Labor accepting party bear no fault of vicarious liability, fault liability assume dispatching party. Supplementary liability for the labor dispatch party is special, does not belong to the scope of a breach of the obligation to bear responsibility. The liability basis of labor dispatch party, components and the right of recourse against its particularity, requires a separate analysis.This paper, includes a total of three parts:The first part includes the development of supplementary liability and the need to establish supplementary liability regime. This section describes chronologically the reflection of supplementary responsibility in our legislation. From a discussion during the legislative process about safeguarding the interests of the victim when direct responsible is unknown, to the idea of supplementary liability, ultimately and finally in the "Personal Damages Explained, " and " Tort Liability Law " in the applicable supplemental liability cases, clearly defined rules. This section also try to resolve contentious issues in academic circles about whether to apply supplementary liability in the field of security and security obligations. It analyzes the application effect of according to copies of responsibility, joint and several liability and joint and several liability, attempts to discuss the legitimacy of supplementary liability from the perspectives of achieving a fair law and promoting social harmony.The second part introduces the basic theory of supplementary liability. There exist two theories regarding the theoretical basis of supplementary liability, namely the doctrine of un-real joint liability and the doctrine of common responsibility, the author analyzes the rationality of these two theories to find the true nature of supplementary liability. Whether supplementary liability should fully assume the part direct responsible cannot afford, there is controversy in academic circles. The author based fault principle and the principle of fairness to determine the scope of supplementary liability. Supplementary responsible after liability, some scholars believe that because of the harm results fault, assume responsibility for the ego, it should not have recourse. I believe that supplementary responsible actually bears a risk of liability, although they do assume a right of recourse, they may not be able to achieve full recourse.The third part carries out a detailed analysis of the supplementary liability clause in "Tort Liability Law". Security obligations has economic, social and philosophical basis, is the inevitable result of social development. Supplemental security obligations bear responsibility for the protection of victims can be achieved, but subject to requirements of the four elements: damage, behavior, fault and causation. This section also tries to seek basis for kindergartens, schools and other educational institution among responsibility of guardianship, contractual obligations and security obligations, specify clearly responsibility principles for educational institutions and obligations. Supplementary liability of labor dispatch party is more special, why labor dispatch party that did not enjoy the benefits of employee should take responsibility for their mistakes, how to define these issues, these questions will be explained in future details.
Keywords/Search Tags:supplement liability, third-party intervention, several liability, unreal joint-liability, recourse
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