Civil Liability Of Duty Tort In Xia V.A Property Management Company

Although the system of employer's liability in China has been established,there are still some insufficiencies in legislation and the judging standards of duty tort in judicial practice are not uniform.The fact that there is no authoritative argument about how to distinguish between individual tort and duty tort as to determine civil liability and about how to deal with the legal conflict in criminal law and tort law area for tort compensation,and the fact that similar cases occasionally have different ruling results,expose the theoretical and practical researching and processing defects in such kind of cases,therefore,research and study on judging standards of duty tort and the scope of tort compensation when involves crime has a positive meaning.The main controversial points of the Employer's liability dispute between Xia and A property company lie in following two issues,one is judging the employee behavior whether belongs to post behavior and the other is how to apply the law when employee commits a crime and while there is legal conflict of criminal law and tort law in personal damage compensation area.Regarding the first controversial point of the case it is illustrated that duty behavior can be judged with four standards,namely time and space standard,purpose standard,nominal standard and authority standard.Regarding the question whether employees should be added as necessary litigants in duty tort dispute and so to the recovery right of the employer,because the employer has external civil liabilities for compensation,the employees are not necessary litigants,and the recovery right should be solved through the internal mechanism of the employer.For the second controversial focus of the case,obligees file an independent civil lawsuit after the condusion of criminal proceedings,which is the choice of criminal victims to exercise the right way to remedy.From the perspective of legal priority and also from the perspective of the responsible parties,the judicial interpretations of the new Criminal Procedure Law which implemented on January 1,2013 are not applicable to the case,and tort law and other civil laws and regulations shall prevail.It is concluded that the A property company should bear Xia's disability compensation.The duty tort liability deals with employee's fault of legal entities and other organizations and improves the feasibility for the victims to get compensation,which is conducive to balance the original unequal rights and obligations.And through sorting the inconsistent provisions of disability compensation in Criminal Procedure Law and civil laws,provides a reference for similar disputes to the court trial.