The Study On Helper Tort Liability

Helper tort liability is an exclusive form of tort liability developed from China’s judicial practice; stipulated in the Interpretation on Compensation for Personal Injuries, it aims to standardize the liability for fort arising from the helper’s activities. However, the provisions on the helper tort liability are anything but exhaustive and they have many deficiencies in theoretical foundation and assumption of liabilities. Moreover, since the helper tort liability is not prescribed in the Tort Liability Law, whether the helper tort liability shall be abolished or amended becomes a subsequent issue.The article 34 and article 35 of The Tort Liability Law is unable to cover the helper’s legal relation and the helper tort liability can not be adjusted via the Tort Liability Law. However, the Tort Liability Law doesn’t deny the existence of the helper’s legal relation, so the helper’s legal relation has its theoretical foundation for continuous existence. In practice, the helpers still exist in rural areas and they are advised to include the volunteers to their ranks so as to expand their extent; therefore, it’s a practical necessity that the helper’s legal relation shall exist. The helper’s legal relation shall be continuously adjusted via the article 13 and article 14 of the Interpretation on Compensation for Personal Injuries and the legal rules concerning the helper’s tort shall be amended accordingly.The Imputation principles stipulated in the Interpretation on Compensation for Personal Injuries for the helper tort liability is the principle of no-fault liability, which lays too many liabilities on the helped worker. The criterion of liability for the helper tort liability shall be positioned with its theoretical foundation as a point of penetration and aimed at probing into the positioning of the criterion of liability for the helper tort liability in the institutional system. From the perspective of control theory, loss diversification theory and the theory of consistent risk and income, and in combination with the difference between the helper tort liability, the unit’s employment liability, the liability in personal labor relation and the ordering party’s liability in the responsibility level positioning in the institutional system, the liability level of the helper tort liability shall be positioned between the liability in personal labor relation and the ordering party’s liability, and the criterion of liability for the helper tort liability shall be positioned between non-fault liability and fault liability. Therefore, the principle of presumption of fault shall be adopted. If the helped worker is unable to certify not being blameful for the injuries to others arising from helping activities, the helped worker shall assume the helper tort liability; if the helped worker is able to certify not being blameful for the injuries to others arising from helping activities, the helped worker shall not assume the helper tort liability.In terms of the constituent elements, The helper’s legal relation is established under two circumstances: upon the helped worker’s implied acceptance when helper invites and upon the helper’s express acceptance when helped worker invites; the helper’s legal relation is not established if the helped worker has explicitly signaled a refusal. The helper’s legal relation is characterized by controllability and gratuitousness. When the scope of the helper’s activities is defined, the helped worker’s controllability over the helper shall be adopted as the yardstick, applying the “employer’s intention theory” and limiting the “internal relevance theory”. A causal relationship between the helping activities and a third person’s injury is formed as a result of the helper’s injury to others in helping activities. When the causal relationship is defined, the causal relationship between the helper’s tort and the fact of a third-person’s injury shall be distinguished from that between the helper’s activities and the helper’s tort. It shall be presumed that the helped worker is blameful for the helper’s injury to others, upon which the helped worker shall assume the liabilities for testifying not being blameful for the helper’s injury to others.In terms of the assumption of liabilities, the helped worker shall separately undertake the helper tort liability if the helped worker can’t certify not being blameful for the helper’s injury to others and the helper has no intention and gross negligence in the injury to others. The helped worker and the helper shall undertake joint liabilities if the helper work can’t certify not being blameful for the helper’s injury to others and the helper has intention and gross negligence in the injury to others. After undertaking the joint liabilities, the helped worker is entitled to claim for the part beyond the scope of liabilities from the helper. If the helped worker can certify not being blameful for the helper’s injury to others, the helped worker shall not undertake the helper tort liability while the helper shall undertake the liability to the injured; if the helper has no ability for compensation, the helped worker shall provide an appropriate compensation for the injured.