A Trail Exploration Of Damages Liability On Liability For Damages Caused By Obstacle

Article 89 of Tort Liability Law of the People's Republic of China(Hereinafter referred to as "Tort Liability Act")specifically stipulates that the tort liability for obstructing the traffic in public roads as a special tort liability,however,the subject of liabilities,imputation principles and the forms of responsibilities under this provision have always been controversial in both judicial theory and practice.These issues have direct influences on the duty body of compensation,whether the compensation can be obtained or not and how much compensation can actually be obtained after the traffic accident occurs.Although the illumination of the subject of liability and imputation principles of tort liability for obstructing the traffic in public roads have been given by Article 10 of Interpretations of the Supreme People's Court on Some Issues Concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accident([2012] No.19,hereinafter referred to as [2012] No.19)but do not achieve the effect to end the disputes.In judicial practice,the problems are still widespread,which include the ambiguous refereeing evidences,the confusing verdict instruments,the huge gap of compensations that obtained in similar cases,and the less guarantee of victims' rights and interests.Under this background,it is an urgent issue for us to protect the rights and interests of victims effectively in order to achieve their legislative goals.According to the provisions of Article 89,this paper analyzes these problems on the basis of the existing research results,and then attempts to put forward recommendations on the improvement of the legal provisions about the tort liability for obstructing the traffic in public roads.In addition to the introduction,this paper is divided into the following parts:The first part mainly discusses the basis of the right of claim in such infringement cases.Through the analysis of doctrine and judicial practice,the author will point out the problems in determining the basis of the right of claim in the cases of the damage for obstructing the traffic in public roads: the first problem is whether Article 89 and Article 37 of the Tort Liability Law is similar or not;the second one is whether the victims could claim compensation for damage from the main body of responsibilities like the road manager or not,according to Article 89.Through the analysis of Article 37—security obligations,the authorhas ruled out its application in obstructing the liability for damage caused by traffic accident,and proves the validity of Article 89 as the basis of the right of claim by using the method of legal hermeneutics.The second part mainly probes the establishment of responsibility of the subject.It classify and sort out the debate of “monism” and “dualism” existing in the imputation principle of the tort liability for obstructing the traffic in public roads and emphasize the interpretation of the Article 10 of Fagui [2012] 19 as the legal basis to define the presumption of fault.On the analysis of Article 89,it is determined that both types of responsibility subject apply no-fault liability,and the rationality of no fault liability applies to road managers.The third part mainly expounds the responsibility assumption,and focuses on the responsibility forms that exist under the responsibility subject.Taking the subject of liability is single or not as the standard,it lists the possible cases of such infringement cases in the real situation.There is no issue of responsibility distribution under the single subject.It summarizes the disputes of existing doctrine about the responsibility assumption—both sides bear the responsibility or one party bears the additional responsibility under the case of two kinds of responsibility subjects.Through the legal interpretation of the relevant provisions,and statistical analysis about relevant cases in the non-litigation case network,it comes to the conclusion that whether the road manager fulfill the obligation of maintenance or not should be applied to different responsibility forms.Finally,it discusses the factors that need to be considered in the responsibility that the subject should bear,in order to achieve the interests balance of all parties in the referee.The fourth part mainly puts forward some suggestions on the existing legal provisions about tort liability for obstructing the traffic in public roads.A series of problems arising from the provisions of Article 89 of the Tort Liability Law on such tort liability show that the existing provisions are too simple and the space for explanation is too large to be defined as unknown.Therefore,we can learn from the similar structure Article 89,such as Article 37,Article 40,etc.,to perfect the rule.As for the Article 10 of Fagui [2012] 19,in the referee,it should not be applied as the main legal basis,and its position should be clarified in order to maintain the harmony within the legal system.