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Study On The Application Of Law For Damage Caused By The Building

Posted on:2018-10-25Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y ChenFull Text:PDF
GTID:2416330596951962Subject:Law
Abstract/Summary:PDF Full Text Request
The earliest building cause person damage liability rules can be traced back to ancient Rome.In recent years,the rapid development of modern society have led to the prosperity of construction,At the same time the risk of building cause person damage such as flower pots or dryer etc.falling from high building is higher and higher,there has been a new development building cause person damage responsibility today,so the research on the application of law for the building cause person damage is still valuable.Building cause person damage has been prescribed in the two laws in our country,has also made relevant judicial explanation to it,respectively,in Article 126 of the"general principles of the civil law of the People's Republic of China(hereinafter referred to as the" general principles of the civil law "),Article 85 to Article 87 of the tort liability law of the People's Republic of China(hereinafter referred to as the "tort liability law ")and Article 16 of the Supreme People's Court on the trial of cases on compensation for personal injury to explain some issues of applicable law(hereinafter referred to as the personal injury compensation case judicial interpretation),for the regulation of building cause person damage,the civil law is the earliest law provision in legislative level,the personal injury compensation cases judicial interpretation is detailed explanations in practice for problems related to building cause person damage,while the tort liability law is the latest and the most systematic regulations onbuilding cause person damage.This article discusses application of law for the damage caused by the building in Article 85 of the tort liability law,the responsibility of building cause person damage is in different presentation domestically and abroad,commonly it is called job responsibilities in Germany and Japan,and it presented differently in various periods in our country,such as job cause person damage liability or responsibility for damage caused by the job,building responsibilities or building cause person damage liability,etc.And in the author's opinion,the buildings,structures and other facilities and its put things,hanging objects which involved in the Article 85 cause person damage responsibility,capture the word "building" to highlight the occurrence of the liability for damage,also point out the pertinence of damage which caused to "person",therefore this article with the provisions of Article 85 of the tort liability law as the center discuss related issues of legal application to building cause person damage.And to study the related issues of legal application on the Article 85 of the tort liability law,we must place those issues in building cause person damage and in the chapter of objects cause person damage,and even in the whole style of the tort liability law and combined with the related case,this paper studies from the following three chapters:The first chapter is the "legislation on the building cause person damage domestically and abroad".Firstly,combing the legislation history of the building cause person damage in our country,compare the tort liability law and the general principles of the civil law,the tort liability law and the personal injury compensation case judicial interpretation,and use the background analysis,to recognize the innovation and of tort liability law to make more improvements.Secondly,listing building cause person damage related laws and regulations of the England law and the American law from the Anglo-American law system and the German law and the Japanese law from continental law system,in order to facilitate the legislation in our country practically.The second chapter is "the constitution of the building cause person damage ".First of all,falling-off of the buildings,structures or other facilities and its put things,hanging objects are discussed in this paper: analyze the difference between the buildings,structures or other facilities and its put things,hanging objects,list the conception of buildings academically and practically,introduce the conception of structures in the relevant laws,local regulations,judicial interpretations andcases,defy and list the other facilities in practice,defy the put things,hanging objects,and introduced the artificial putting things and hanging objects and the natural putting things and hanging objects separately,distinguish the responsibility of the consequences caused by these two kind of objects.Learning the definition of the falling-off from the legislative branch,and combined with the provisions of the Article 87 of the tort liability law,find the difference between the falling-off in the Article 85 and the Article 87,and leads to the judicial practice to apply the relevant law of the point.Secondly,this paper discusses the causes damage to others and causal relationships: states damage to others,the damage results shall be classified,analyzes the damage types of damage with or without money supplemented by the judicial case,summarizes the causal relationships,and the direct causality and indirect causality with the responsibility are analyzed,definite the burden of proof of a causal relationship.The third chapter is "responsibility to the building cause person damage ".First of all,the imputation principles of building cause person damage and its main responsibility to bear the obligation is defined,the building cause person damage of the fault imputation principle for fault-presuming principle or fault principle,the doctrinal disputes are discussed in a wide range of introduction,combined with the case to the judicial practice in the defined presumption of fault principle is analyzed,and further raises safety duty of care under the Article 85 of the tort liability law,then introduces the source of safety duty of care,with clear differences about such obligations defined in the judicial practice,at the same time distinguishes the safety duty of care and safeguards obligations under Article 37 of the tort liability law and defines the meaning of the safety duty of care.Secondly,this paper introduces the building cause person damage relief :by the infringer fault,the third party damage and force majeure,in which case illustrates the patentee fault liability of the infringer,combined with the tort liability law prescribed in article 85 of the recover from the other person's situation to illustrate whether to apply the third person to cause damage to the infringer liability reasons,combined with the related judicial interpretation to define the relevant contents of force majeure.Finally,has carried on the further study:the main responsibility of the tort liability law referred to in Article 85 of the owners,managers,users and other responsible persons of relevant concepts,and respectively analyzed the above four kinds of people in the practice of the specific circumstances,distinguishes owner of chattel and real estate,and focuses on real estate in buildingcause person damage,the liability issues respectively illustrates the houses which have been signed contract,paid the price and delivered houses,have not been completed transfer registration and under the condition of anonymity to buy to make this responsibility clear between the registered owner and the real one;For managers in disputes over the academic circles has carried on the inventory,if only for the manager of state-owned assets are discussed in this paper,and the manager can be divided into legal manager and contract manager,whether the state-funded enterprises belong to the legal manager was analyzed,and the judicial case quoted as agreed upon in the realty service company as the manager decided in the practice,compares the scope of the duty of legal manager and contract administrator,the contractor can be identified as the manager or other person elaborates the differences in the judicial practice,and to explain;Divided into users of creditor,users of property rights,and other users which based neither on creditor's rights nor on the property rights,especially defy the responsibility of the users of public house lease,the person of pawning right,the person of servitude.The user who have no right to use shall bear the responsibilities of building cause person damage are analyzed;In the case of judicial cases,the contractor is the other responsible person,and the personal injury compensation case judicial interpretation is also discussed in the Article 16,whether the designer or the construction worker is the other responsible person.This paper analyzes the relationship between the owner,the manager or the users and the corresponding responsibilities,and introduces the relevant academic viewpoints and analyzes them in detail.
Keywords/Search Tags:Building cause person damage, Presumption of fault, The liability subject
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