The Study On The Risk Burden Of Responsibility Of Things Thrown Off The Buildings

Things thrown off the buildings happen all the time,known as "the pain over the city." There are two situations in things thrown off the buildings,one can identify the actual infringer,the other cannot.When the actual infringer can be identified,the case is often ordered to bear compensation liability by referring to ordinary torts.But the complexity and particularity of things thrown off the buildings are that it is difficult to determine the real infringer,in these cases,the tort liability risk burden of things thrown off the buildings become the biggest problem.Before 2009,in the absence of specific legal provisions,in reality,there were even similar cases,but the judgments were diametrically opposite.Although the 2009 Tort Liability Law was the first time to stipulate things thrown off the buildings explicitly,it caused greater controversy,mainly because when the actual infringer cannot be identified,the liability of the possible perpetrator of the construction shall be borne by the applicable person.It will be unfair to apportion the liability of one infringer to other possible perpetrators.The focus of controversy in the academic community is whether this liability is reasonable,whether it goes against the legislative purpose of the Tort Liability Law.In the revised version of Civil Code in 2020,the provisions of high-altitude throwing objects were revised again.The provisions of things thrown off the buildings are more detailed and specific.The new provisions are:when the infringer cannot be determined,the potential infringer shall bear the liability of compensation first,and then the specific infringer shall be recovered from the specific infringer.At the same time,it also standardizes the security obligation of property service enterprises and the investigation responsibility of public security organs.The provisions of Article 1254 of the Civil Code supplement and improve Article 87 of the Tort Liability Law.However,during the implementation of this provision,problems still occur frequently.In judicial practice,the effect of things thrown off the buildings is not ideal.First,it is impossible to distinguish between"throw" and "falling",leading to confusion in the application of law.Second,it is unable to achieve the desired effect of things thrown off the buildings legislation in terms of procedure and entity.On the one hand,the victim can not get due compensation;on the other hand,it will cause a certain degree of injustice for the potential infringer to bear responsibility that is not his own,which will hinder the enforcement.The problem of things thrown off the buildings are,in the final analysis,still a problem of risk burden.If a things thrown off the buildings event occurs,who bear the risk,how to bear the risk,how to bear the risk to the greatest extent,and how to prevent the risk will be the focus of this thesis.This thesis will be divided into five parts,based on the discussion of things thrown off the buildings problems,and put forward my own suggestions and thinking.The first chapter of this thesis explores the distinction between things thrown off the buildings and related concepts.Failing to distinguish between throw and related concepts would lead to confusion in the application of law.Based on discussion of the difference between things thrown off the buildings and falling object,and difference between things thrown off the buildings and common dangerous behavior,carry out in-depth classification of things thrown off the buildings types.In the field of criminal law and the field of civil law,there are related provisions of things thrown off the buildings.Starting from these two fields,the classification of things thrown off the buildings are discussed.In order to not be able to identify the actual infringement responsible for the heavy,launched the following study.The second chapter studies the legislative process of things thrown off the buildings.Then from Tort Liability Law to Civil Code,through the continuous modification,the rationality and the shortage of the existing provisions of the things thrown off the buildings lead to the discussion of the difficulties of the provisions in the next chapter.The third chapter is divided into two parts:the procedural aspect and the substantive aspect.On the one hand,the biggest dilemma is that the things thrown off the buildings cannot find out the actual liability.On the other hand,it is difficult to impose liability penalties on collective residents or obtain any effective relief for victims.Based on the existing predicament,the paper leads to the discussion of the theory and the research of the treatment measures.The fourth chapter of the risk burden theory of the main theory and related governance measures as a starting point,based on domestic theory,to the external research as a supplement.The domestic academic community is mainly divided into positive theory,negative theory and differentiation theory.The positive theory advocates that the possible harm of the building users should bear fair liability,the negative theory is opposed to the possible harm of the building users to bear liability.Some scholars have proposed new ideas such as social insurance,commercial insurance and so on.The differentiation theory makes different divisions of the subject in the building in order to pursue the maximum fairness.Study the theoretical basis and rationality of the three different theories,at the same time study the mainstream theory and the main governance measures outside the territory.The fifth chapter puts forward the solution to the problem of things thrown off the buildings on the basis of the foregoing discussion.Based on the Civil Code,discusses the progress and shortcomings of the rules of things thrown off the buildings,combines the property safety protection obligation,social insurance and commercial insurance,law and economic analysis and proportional liability,to explore the comprehensive management.On the one hand,from the subject of liability in the field of civil law,discusses the basis,judgment,form and right of recourse of property liability.The liability of the possible harm of the building users is further detailed,the proportion of liability can be used for reference.On the other hand,from the external governance measures,such as the German social security system of public funds and social compensation effective relief,the feasibility analysis of commercial insurance.things thrown off the buildings are the field involving many problems,and its future development should not only rely on civil law regulations.We should take multiple measures to find a more appropriate and comprehensive solutions.This thesis aims to analyze the rationality of the latest provisions of the Civil Code,explore the feasibility of relevant measures outside the territory,and provide a new idea for the improvement of the things thrown off the buildings.