Review On Liability For Damage Caused By Falling Objects From High Altitude

In the judicial application of Article 87 of the Tort Liability Law,there are two significant dilemmas: the confusion of the criteria for determining "possible harm" and the inconsistency of the criteria for "proving that one is not the infringer".On the surface,the dilemma of judicial application is due to the vagueness of the terms of the law,but in essence it stems from the lack of theoretical legitimacy of the responsibility of "possible offenders".Article 1254 of the Civil Code has substantially revised and improved Article 87 of the Tort Liability Law,which not only guarantees the relief of victims,but also makes the responsibility bear more fair and reasonable.However,Article 1254 of the "Civil Code" did not adequately respond to the theoretical disputes of Article 87 of the "Tort Liability Law",and formed the status quo of unresolved old disputes and new disputes.Although the responsibility of "possible offenders" is practically necessary,its irrationality also exists objectively.The responsibility of "possible offender" is based on the consideration of relieving the victim,and it is a compromise between rationality and practical necessity.The responsibility of "possible offenders" does not conform to the basic characteristics of the principle of liability in tort law,and any effort to impose the principle of liability on "possible offenders" will inevitably end in failure.The form of responsibility of "possible offenders" should be understood as liability by share.When determining the share of liability by share,the method of "determining the share according to the likelihood of causing damage" is more reasonable,but the method of "equal sharing of responsibility" is more operable.The safety guarantee obligation of the building manager is both an obligation and a statutory obligation.The responsibility of the building manager is effective for the relief of victims and is presumed to be fault.The content boundary of the building manager’s safety guarantee obligation should be limited to publicity,warning,dissuasion,assistance,rescue,etc.,and the installation and maintenance of monitoring equipment dedicated to preventing falling objects from height should not become the content of the building manager’s safety guarantee obligation.Whether the actual infringer can be found has nothing to do with whether the building manager bears tort liability,but it will affect the basis for the building manager to assume responsibility.When the building manager is a direct infringer,the form of liability is a separate liability;when the third party is a direct infringer,the form of liability of the building manager is a supplementary liability.In addition,the relationship between the responsibility of the building manager and the responsibility of the "possible offender" belongs to the relationship of share responsibility.Article 1254 of the "Civil Code" has something to be perfected.It is recommended to limit the responsibility of "possible offenders" from three aspects: only compensation for personal injury,modification of compensation to appropriate compensation,and exclusion of compensation for mental damage,so as to balance the protection of the rights of "possible offenders" and the rights of victims as much as possible.The positive significance of the relief fund for victims of falling objects is significant,and its lack of punishment and prevention functions can be supplemented by other legal systems.The relief fund can adopt a hierarchical management mode established by provincial governments.The funding source of the relief fund consists of government financial subsidies,administrative fines paid by infringers of objects falling from height,special maintenance funds and social donations.Compared with the relief fund,commercial insurance only plays a supplementary role in the relief of victims of falling objects.