The Research On The Tort Liability For Human Damage Caused By Stray Animals

In recent years,there have been many cases of damage caused by stray animals.People are not concerned about the facts of the case,but the judicial identification of the subject of liability and some problems exist in the application of relevant legal liability.Article 1249 of the Chinese Civil Code stipulates that the subjects of liability for the tort of damage caused by stray animals are the original breeders and managers.However,due to the inadequate understanding of citizens for their own management obligations,the weak consciousness of abiding by the law and the vulnerabilities of animal management by administrative organs,the original breeders and managers cannot be found in the case of damage caused by stray animals,they cannot actually be liable for the damage.Therefore,the judge’s determination of other responsible subjects is understandable in the case that there is no basis.However,in the process of the application of relevant legal norms,the reasons are different and the legitimacy is insufficient,so the judgment result is controversial.In addition,the court takes no account of the mental damage of the victims,and it is difficult for the victims to get effective support for the right to claim compensation for mental damage in the case.In some cases,the burden of proof borne by the victims is too heavy.Since stray animals are highly mobile and dangerous,and the contact time with the victims is often short,it is difficult for the victims to obtain conducive evidence,so the victims have to bear the legal consequences of failing to provide evidence.Therefore,in order to better protect the legitimate rights and interests of the victims,this paper starts from the relevant concepts in theory and practice,summarizes and concludes the problems in the identification process of the infringement liability of stray animals,and draws lessons from the relevant stray animal management systems abroad,and puts forward feasible suggestions from three aspects: legislation,judicature and administration.To be specific,this paper consists of the following four parts:The first part is an overview of the stray animals.Including the concept of stray animals,legal status,causes and social risks.The second part is the theoretical analysis of tort liability for damage caused by stray animals.This part focuses on the analysis of the nature and theoretical basis of the tort liability for damage caused by stray animals,the legal subject of tort liability caused by stray animals in comparative law,constituent elements and exemption reasons.By studying the theoretical issues,it is expected to contribute to the judgment of whether the stray animal tort fact is subsistent,the identification of the responsible subject in judicial practice and the relief of actual damages of the victims.The third part is the problems existing in the application of tort liability caused by stray animals.It includes the lack of legislation on the tort liability caused by stray animals,the different reasons for the judicial identification of the tort liability caused by stray animals and the loss of administrative management of the information source of stray animals.The fourth part puts forward three kinds of measures to solve the relevant problems in the application of tort liability for damage caused by stray animals.In the aspect of legislation,the relief system of responsibility subjects should be established,and the applicable conditions of all kinds of responsibility subjects should be clarified.At the same time,punitive rules should be introduced to promote the original breeders and managers to fulfill their obligations of animal management.In terms of judicial relief,different relief methods should be clarified,intermediate relief should be introduced,establish the criteria for judging the "serious" elements of mental damage and the burden of proof should be reduced.In terms of administrative rules,special animal management agencies should be established,the animal registration system should be further improved,and the animal third party liability insurance should be stipulated as compulsory insurance.