A Study On The Liability Of Highway Managers To Damages Caused By Obstacle

After 30 years of construction,China’s highway mileage has ranked first in the world,but the laws regulating the responsibility of highway managers are relatively lagging behind.Expressway managers are increasingly involved as defendants because of management issues,and how to define their responsibilities in various types of traffic accidents is quite confusing.One of the more prominent types of traffic accidents is the case caused by obstacle.However,through researching the judgment,it is found that the judgment standards of such cases are not uniform.In view of this,this article combs through the key issues of such cases,and then deepens the issues to the abstract level of civil law theory for analysis and discussion,and then integrates the spirit of legislation and academic theory,put forward own views,in order to provide useful ideas for the practical to solve such problems.In addition to the introduction,this article is mainly divided into the following five parts.In the first part,the main issues of controversy are elicited by sorting out typical cases.The first is that the parties and the referees do not have a unified understanding of the nature of disputes caused by such obstacle.Some courts have recognized that the highway managers are responsible for security obligations,but some courts hold the opposite view,Some courts did not specify the nature of the responsibility of highway managers in the judgment documents.Secondly,the different understanding of Article 89 of the Tort Liability Law led the courts to have a different views of the doctrine of liability fixation for expressway managers,mainly including fault-free liability,fault-based liability and fault-presumed liability.Finally,the diversification and complication of the responsible subjects make it controversial whether the form of responsibility between expressway managers and other responsible subjects is based on part liability,not really joint liability or supplementary liability,the corresponding share of responsibility is also difficult to quantify fairly and scientifically.In the second part,mainly analyzes the nature of tort liability undertaken by the highway managers.Academically,there are two disputes about the liability for damage,one is the objects liability and the other is the security obligations.However,the objects liability is difficult to cover two types of liability for damage caused by obstacle,and the objects liability itself comes from a broad sense of security obligations.The obligations of expressway managers are essentially security obligations.Expressway managers are the subject of security obligations.The expressway belongs to the public place and business place under the security obligations.The security obligations of highway managers come from legal provisions and contractual agreements.In the third part,mainly analyzes the doctrine of liability fixation of expressway managers to bear the liability for damage caused by obstacle.There are three viewpoints on academic attribution principles that should be applied to expressway managers: fault-free liability,fault-based liability and fault-presumed liability.However,there is no practical basis for fault-free liability,and it is more reasonable for the highway managers to bear the burden of proof of "fault",and the responsibility for the presumption of fault is also in line with the latest legislative intent.The relevant technical specifications are only the basic judgment standards to judged the highway managers are at fault.It is also necessary to measure whether they have fulfilled their corresponding safety assurance obligations by the standards of good managers.In the fourth part,mainly analyzes the responsibility of expressway managers for the damage caused by obstacle.Academically,there are three points of view: share responsibility,not really joint responsibility and supplementary responsibility.When the obstruction has no connection with the third party and there are no other liable subjects,the highway manager shall bear all the responsibilities.When there are other liable subjects,the liable parties of each party shall bear the share responsibility.When the obstruction is related to the third party,it should also be distinguished whether the third person is knowable.In the case where the third party is knowable,if the third party’s subjective state is intentional,the highwaymanager should assume supplementary responsibility;if the third party ’s subjective state is negligent,the high-speed manager should bear the share responsibility.In the case where the third party is unknowable,if the expressway manager has fulfilled the basic duty of care,he shall bear the corresponding share responsibility;if the expressway manager has not fulfilled the basic duty of care,he shall bear no real joint liability.The fifth part is mainly the suggestions for improving the regulations on expressway manager to bear the liability for damage caused by obstacle.Article 1256 of the Third Review Draft of "Corpus of Civil Law" first needs to clarify that the nature of the tort liability of obstruction of traffic is a security obligations.Secondly,it is necessary to make clear that on some roads including highways,due to the payment of tolls,a contractual relationship can be formed between the passer and the manager of the expressway,which may constitute tort liability and breach of contract in cases of obstruction of traffic.The competition for responsibilities should therefore allow the victim to freely choose the basis of the claim.The last is the perfection of the wording.Article 10 of the "Judicial Interpretation of Compensation for Damages in Road Traffic Accidents" needs to be improved in the following two aspects: First,it is necessary to improve the standard for determining the fault of public road management including highway managers.The second is make corresponding interpretations of "corresponding responsibilities" according to different circumstances.