Analysis Of Liability For Damage Caused By Buildings

The liability system for damage caused by buildings originates from the liability fordamage caused by working objects of the Roman law,which was first stipulated by French Civil Code.Through years of jurisprudence and the development of the doctrine,the liability system for damage caused by buildings has been constantly improved in the West.The liability system was stipulated for the first time in Article 126 of General Principles of the Civil Law.After the adoption of Tort Liability Law,Article 126 in General Principles of the Civil Law was divided into Article 85 and Article 86 in Tort Liability Law.But compared with other countries,there are some shortcomings in the relevant provisions in China like the ambiguity of concepts and meanings and too specific or vagueprovisions of the law.So it is of great significance to conduct a systematic research on liability for damage caused by buildings.The thesis puts Article 85 of Tort Liability Law as the research object and the analysis is made mainly from the following parts:The first chapter is legislation on liability for damage caused by buildings,which gives a brief introduction to the conditions of legislation on the liability for damage caused by buildings in other major countries.Through the longitudinal comparison of China's legislation,it is known that Article 85 of Tort Liability Lawis derived from Article 126 of General Principles of the Civil Lawand corresponding development has been made.At the same time,relevant legislation and judicial explanation in China are analyzed.The theoretical basis and the principle of imputation of the liability system for damage caused by buildings are introduced in the second chapter.The liability system in other countries is mostly based on the theory of compensation and the theory of dangerous liability while it is considered as a violation of the traffic safety obligations in Germany and Taiwan.Legislators in China focus on liable persons' obligations of maintenance and management,which is one of the traffic safety obligations.The principle of imputation includes no-fault liability,fault presumption liability and the combination of fault liability and no-fault liability.And fault presumption liability was adopted in China because it did not reach the “highly dangerous” level.Meanwhile,Tort Liability Law is based on the principle of fault liabilitywith the exception of no-fault liability.The third chapter talks about the constitutive elements of the liability system for damage caused by buildingsby exploring the meaning and scope of related concepts including “building”.The application ofwords such as “collapse”,“fall” or “drop” can not be limited to its original meaning and interpretation on them need to bebroaden.Article 85 of Tort Liability Law does not limit the rights of protection,but it should not include purely economic losses.When the owner or the managersuffers damage,he shall also apply to this article and contributory negligence.Causality includes both direct causal and indirect causal relationship.It is often difficult for owner of thebuilding to prove thathe is not at fault,so it can only be exempted by proving that there are other exemption reasons.Chapter four is about civil liability forthe damage caused by buildings,introducing the scope of liable parties of liability forthe damage caused by buildings.It is thought that the “manager” should not be confined to the previous meaning and interpretation on it should be expanded to the actual manager of the building including contractors and property management companies except the owner and user.“User” shall be construed as a person who actually owns and controls the building,including the person without right to use the building.The liability form among liable parties should be a single liabilityrather than joint and several liability or proportional liability.After the liable party bears the relevant liability,the liable party shall have the recourse against the third person.The conclusion is the summary of the whole thesis.