The Tort Compensatory Liability For Causing Disappearance To A Person

As we all know that the feason's tortious action causing the disability or death to people shall be liable for tort damages.But,whether the feason's tortious action causing the disappearance to a people should be liable for tort damages too? Few researchers mentioned it,and the current legislation is also not to be noncommittal.This vague attitude leads to the confusion of the judicial practice,and do great damage to the unity and authority of judicial decisions.At the same time,it works against to protecting the rights and interests of the victims.If we can really answer this question,it will undoubtedly enhance our understanding of related legislation,improve the relevant theory,and coach the similar judges.The article mainly includes five parts:The first part: Summarizing the opinions of the referee under the circumstance of causing disappearance to a person.In this part,the domestic judicial precedents are examined.First of all,through preliminarily including cases,it could be both found that some court supported the close relatives' request for tort damages compensation,and other courts didn't support the close relatives' request for tort damages compensation.Secondly,through in-deeply analyzing the referee's reasoning,it also could be found the root of the contradiction is that the different courts or judges had different opinions on whether causing people disappeared lead to damage in tort law and whether there is a causal relationship between the damage and the injuring behavior.Finally,based on the above analyses,we set up a general research idea,that is,we will make a comprehensive demonstration by taking the component of tort liability as an analytical framework,and combining with the specific facts in the case of disappearance.The second part: Cognizing the damage under the circumstance of causing disappearance to a person.In this part,it discusses the damages from the aspects of objective facts,legal theory and expressive genre.First of all,from the perspective of objective facts,we believe that in addition to causing disability and death,causing disappearance may also lead to economic and mental losses to their immediate family.Secondly,from the perspective of legal theory,study suggests that in the premise of standardized damage principle,causing people disappeared does not violate the right to life,only when the unidentified person is declared dead in third cases can it be identified as an infringement of the right to life.However,no matter whether the unidentified person is declared dead or not,the above-mentioned injuriousbehavior has caused a violation of right of status to immediate family.Finally,from the perspective of expressive genre,study suggests that,by taking the subject of victimization as the standard,damage could be divided into damage to the disappeared person and damage to the close relatives;By taking the establishment of responsibility and range of responsibility as the standard,damage could be divided into damage on establishment of responsibility and damage on range of responsibility;By taking the presentational Level of damage as the standard,damage could be divided into realistic damage,effect of damage and second realistic damage.Among them,the realistic damage refers to the damage to the right of live and right of status.The effect of damage refers to the property loss and mental loss which based on the right of live and status.The third part: Determining the establishment of responsibility under the circumstance of causing disappearance to a person.This part mainly discusses the establishment of compensation liability from the perspective of causality.First of all,chooses the correspondence theory of causal relationship as a criterion.Secondly,unfolds analysis on the causal relationship in situation which people disappeared.Study suggests that only when the unidentified person is declared dead in third cases,it is considered that there is a causal relationship between the injurious behavior and the result of the declaration of death.In this case,the feason should bear the same liability as the compensation for the death damage.When the unidentified person is declared dead in first two cases,although there doesn't has causal relationship between the injuring behavior and the result of the declaration of death,but there is a causal relationship between the injuring behavior and the injury of the close relatives' right to status.And this causal relationship remains in the case where the unidentified person has not been declared dead.Therefore,the feason should also bear the liability for compensation of tort damage.The fourth part: Delineating the range of responsibility under the circumstance of causing disappearance to a person.The main part of this chapter is to analyze the range of compensation with the principle of limited indemnity.First,in order to balance the interests of the perpetrator and the victim,the article chooses limited indemnity as the basic principle.Secondly,by studying the scope of compensation for death damages and the way of calculation,it is considered that people whose whereabouts are declared dead according to third situations shall be compensated according to the sixteenth provision of the "the Tort Liability Law".People whose whereabouts are declared dead according to the first twosituations shall also be compensated which including the following three aspects: the loss of active property;the loss of spiritual interest;the loss of prospect interest.Among them,the positive property loss should be calculated according to the facts,the loss of wages should be calculated according to the existing judicial interpretation,the missing of the economic benefits should be calculated according to theory of "maintaining the same standard of living" calculation,and the loss of spiritual interests should be calculated according to the judges right of discretion.The fifth part: Choosing the basis of referee under the circumstance of causing disappearance to a person.This section mainly discusses the referee basis of the compensation for mental damage and the referee basis of the compensation for property damage.First of all,in the former case,because the second provision of “the Interpretation of the Supreme People's Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts” only stipulates the right of claim for mental damage compensation when person under guardianship are divorced from guardian,so the provision is too limited to be as a basis for refereeing.The twenty-second provision of “the Tort Liability Law” is a general provision for compensation for mental injury caused by infringement of right over body,so it can be used as a basis for court to support mental injury compensation for close relatives.Secondly,in the latter case,the sixteenth and eighteenth provision of “the Tort Liability Law” only stipulate the liability of property damage for the perpetrator to cause disability and real death.In principle,it is not suitable for people who disappeared.But the twentieth provision of “the Tort Liability Law” is a general provision for compensation for property damage caused by infringement of right over body,so it could be used as a basis for court to support the close relatives' claims.