Research On Rules Of Personal Damage Caused By Unknown Throwing Objects In Article 87 Of Tort Liability Law

Article 87 of the Tort Liability Law stipulates the treatment of unidentified parabolic damage at high altitude,although the settlement of the rules is not uniform before the decision is made,but it also caused a lot of controversy.Therefore,it should be clarified the nature,positioning and preconditions of Article 87 high-altitude unidentified parabolic damage rules,thereby improving the social effects of its application.First of all,it is necessary to clarify that the high-altitude parabolic damage specified in Article 87 of the Tort Liability Law does not constitute liability for infringement: First,the high-altitude parabolic stipulations in Article 87 of the Tort Liability Law do not satisfy the constituent elements of the tort liability of the general fault liability rules,there is no fault because the building users who may be harmed,the “compensation” prescribed by law is different from the “compensation” of tort liability,it is not the actor who ultimately compensates the victim.Therefore,it does not constitute the tort liability under the principle of fault liability.Second,Article 87 of the Tort Liability Law stipulates that the building user who can prove that he is not the infringer does not need to compensate the victim.The distribution of such burden of proof does not meet the excuses for no-fault liability.This scenario has not yet reached the level of mandatory liability for infringement,and therefore does not constitute tort liability under the principle of no-fault liability.Article 87 of the Tort Liability Law is a loss sharing mechanism for high-altitude unidentified parabolic damage.Article 87 of the Tort Liability Law is based on the principle of fairness.It starts from the concept of fairness,highlights the protection of the legitimate rights and interests of civil subjects,and achieves the purpose of rights relief through loss sharing.Since the specific actor cannot be identified,the victim's interest loss can only be distributed to the most relevant building users who may be harmed.Similarly,Article 24 of the Tort Liability Law stipulates that it is not a “fair responsibility” but a loss-sharing mechanism.The two are a loss-sharing mechanism based on the principle of fairness.The relief function is the main value objective.Further adjustment of objective unfair results.However,Article 87 is not the specific application of Article 24,because the two have essential differences in the applicable conditions.The parties to Article 87 are not the perpetrators and victims,and the building users who may be harmed are not at fault.Article 87 of the Tort Liability Law is not based on the principle of imputation to transfer the consequences of damage to potential building users,but has a unique value orientation and constituent elements when sharing losses,only for a single situation can be applied.In order to achieve good results when applied in practice,it is necessary to clarify the basic conditions for its application and strictly limit the application.First,the damaging items are thrown or dropped from the "buildings".Buildings should have a certain height,because items thrown from buildings with a certain height will have the potential to cause serious consequences.If the building is short,the user is more obvious,and the infringer can generally determine.It is to distinguish all the daily residential buildings and office buildings,not the structures or other facilities,and does not include other use of construction facilities and construction or other high-altitude operations,vehicles,stadium stands and other places thrown or dropped.Second,the “specific infringer” cannot be determined.If the victim has evidence to prove or can determine the actor by means of monitoring,public security department investigation,etc.,the specific infringer shall bear the tort liability.And when determining the specific infringer does not necessarily require an exact individual,you can determine the responsible subject.If the scope of the perpetrator can be narrowed by means of investigation,etc.,the expropriated building users do not need to prove and should not need to share the loss.Third,the causative items are “thrown” or “fallen”.The causative items are not shedding,shelving or hanging objects.Because the items are identified as shedding,shelving,and hanging objects,there should be a premise that the causative items belong to a building,structure or other facility.It is also possible to confirm the person responsible for the tort liability.In the event that it is not possible to determine the manner in which the causal item is dropped,only the throwing object and the fall of the infringer cannot be determined.Article 87 of the Tort Liability Act may apply,otherwise Article 85 shall apply.