| The Article 1254 of the Civil Code of the People’s Republic of China is generally referred to as the “tort of throwing objects of a height”,but in fact it covers three situations:general tort liability for throwing objects from a height,tort liability for falling buildings and objects,and equitable liability “when it is difficult to determine the specific tortfeasor after investigation”.The law also covers equitable liability “where the specific tortfeasor cannot be identified”.In these cases,where the specific tortfeasor is unknown,section 1254 places the burden of proof of the potentially aggrieved occupier of the building to “prove that he is not the tortfeasor” and,if this is not possible,to compensate.The allocation of the burden of proof is not only criticized in theory,but also in judicial practice,which has frequently led to questions from the public about “guilt by association” and “injustice”,seriously affecting the authority and credibility of judicial decisions.In order to properly deal with the problems and questions that may arise in cases of tort of throwing and falling objects of a height,it is necessary to look at and re-examine the issue of tort of throwing and falling objects and Article 1254 of the Civil Code not only from the perspective of substantive law and legislators,but also from the perspective of procedural law and judges,with the help of the perspective of the burden of proof.Only by not limiting oneself to the abstract legislative purpose of the substantive law,but by flexibly applying the norms in judicial practice to harmonies the interests of the parties,and by bringing into play the subjective initiative of the judges to fill the statutory law,and by minimizing the contradictions between the victims and the defendants in the tort of throwing and falling objects from a height in the current Chinese context,can we know that the “round machine and the pearl are alive in the plate”.The first part of this article provides a general overview of Article 1254 of the Civil Code.On the one hand,this chapter analysis the content of the provision for the point of view of legal interpretation;on the other hand,it elaborates on the existing problems with the point of view of substantive and procedural law.Article 1254 does not strictly distinguish between thrown objects and falling objects and their corresponding tort liability,but is displayed in the same article,which needs to be differentiated and applied separately for its application.The problems with Article 1254 in judicial practice can be cited from three areas of the study of the burden of proof: firstly,the lack of clarity as to what constitutes a tort in the case of equitable liability and the allocation of the burden of proof;secondly,the difficulty of proving that a tort was not committed by the vast majority of " innocent " defendants,which needs to be alleviated;and thirdly,the difficulty of the judge in determining whether the defendant has met the burden of proof.The judge was too strict in grasping whether the defendant had met the standard of proof,resulting in the defendant and the public “sitting together” and “unjustly”questioning the sentiment,which is not conducive to maintaining judicial authority.The second part of this article provide a specific analysis of the elements of the tort of throwing and falling objects of a height and the corresponding allocation of the burden of proof.The tort of throwing objects of height and falling objects is a case of “specific tortfeasor unknown”,which is a fair liability expressly provided for by law,and its constituent elements and the allocation of the burden of proof are very different from the general tort liability.The “difficulty in identifying the specific tortfeasor after investigation” should be understood as a special constituent element;the elements of tort are actually split into “existence of specific tort” and “unknown specific tortfeasor”.The element of fault is no longer considered.At this point,the plaintiff did not need to prove who the specific tortfeasor was,but only needed to prove that there was a specific tort of “throwing or falling objects from height”,that he had suffered damage,and that the damage and the tort had a causal relationship;the “specific tortfeasor” element The “specific tortfeasor” element was inverted to the defendant,who proved that he was “not a specific tortfeasor” in order to avoid liability for compensation.The third part of this article summarizes the strategies that the potentially aggrieved building occupier,i.e.the defendant,can put forward in the proceedings,based on a summary of the cases.For the defendant,proving that he was "not a specific tortfeasor",i.e.that he did not commit the act of throwing or did not have possession of the falling object,is in itself inconsistent with the general rule of allocation of the burden of proof and is relatively difficult.The proof of negative facts in this type of tort can be broadly categorized into three modes:direct proof,indirect proof and manifest proof.The sudden and hidden nature of the tort of throwing and falling objects means that direct proof does not have much scope for use,so the use of circumstantial evidence to assemble a complete chain of circumstantial evidence and the use of the rule of thumb to prove a case is often the best option.However,the lowering of the standard of proof,as an effective and powerful strategy to alleviate the difficulties of proof,has not been accepted in judicial practice,and some courts are even more stringent in such cases than in ordinary cases.The fourth part of this article questions the standard of proof and the reasoning of judges in some judgments.If a judge requires a potential tortfeasor to prove beyond a reasonable doubt before finding the defendant’s defense established,not only will this not help protect the victim,but it will also infringe the rights of many potential tortfeasors.Firstly,the tort of throwing or falling objects of a height still falls within the scope of the general standard of proof provided for with / for the Civil Procedure Law.Secondly,the tort of throwing or falling objects of a height is unique to ordinary equitable liability: the defendant succeeds in proving the activity,the effect and consequences of which are not directed at the victim,but at the remaining equitable duty bearers.Thirdly,the existence of too many possible tortfeasors bearing liability for compensation will not only result in low economic efficiency,but also make it difficult to recover the social costs and to complete the social education and deterrent effect.Therefore,a high degree of conclusiveness should still be the standard of proof in cases of tort liability for thrown or falling objects of a height.Finally,this article systematically composes the application of Article 1254 of the Civil Code,refining and reconstructing the solution to the tort of throwing and falling objects of a height of the basis of the increased obligations to property agencies to ensure safety and the public security authorities to investigate promptly.When the specific tortfeasor of the tort of throwing objects of a height is unknown,it is certainly a possible direction of development to seek commercial insurance,social assistance and other routes outside of tort law to protect the victims’ remedies,while not harming the interests in innocent “possible tortfeasors”.However,the application of equitable liability is the best option in the current Chinese context,and is an essential stage in the development of legislation and justice.At this stage,the judiciary should still comply with the provisions and legislative intent of Article 1254 of the Civil Code,while flexibly regulating and distributing the relationship and interests in the parties in order to truly realize good law and good governance. |
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