Shandong University School of law of tort liability law note

Shandong University NO.200800640001 AI XIAN DONG ARSENAL 2010-2011 the tort liability law

The first part of tort liability law

The first chapter outlines the tort liability law 2

The second chapter imputation system of our tort liability 5

The third chapter general tort damages liability 8

The fourth chapter defenses and loss sharing 10

The fifth chapter concurrence of liability and related problems 14

The second series of tort law theory -- the specific act of tort and its liability

The sixth chapterOverview of the general tort liability law 16

The seventh chapterThe civil liability of the third party infringing creditor's rights 17

The eighth chapterThe number of joint tort liability 17

The ninth chapterTortious liability of omission 20

The tenth chapterLiability of Guardian 22

The eleventh chapterLiability caused by the highly dangerous work 22

The twelfth chapterThe road traffic accident responsibility 23

The thirteenth chapterThe expert liability 24

The fourteenth chapterCampus accident liability 25

The fifteenth chapterEmployer's liability and legal responsibility 26

The sixteenth chapterProduct liability 28

The seventeenth chapterLiability caused by environmental pollution 30

The eighteenth chapterAnimal damage 31

The nineteenth chapterLiability caused by building etc. 32

Third forms of civil liability for tort

The twentieth chapterTort civil liability 33

The fourth seriesCompensation for damage
The twenty-first chapter The compensation for the 35

Fifth series of tort case 38

The first partThe tort liability law

First chapterOverview of the tort liability law

The first section The concept, characteristics, system and the origin of Chinese Tort Liability Law

First, China's tort liability law concept, characteristic and the system

(a) the concept and characteristics of China's tort liability law

The concept of 1 China's tort liability law

China's tort liability law is to adjust the infringement of property, personal behavior (tort own and quasi tort) sum of legal norms related tort arising from, or tort law is the sum of the damage compensation is the core of the relationship between rights and obligations between legal norms and adjustment of the right to compensation the compensation obligor. If the adjustment object of the tort liability law is simplified as "tort", the definition of our tort law can be expressed as: China's tort liability law is the sum of legal relationship between the adjustment of tort liability compensation for human rights and obligations of human, it is an important part of the civil law of our country the.

Characteristics of 2 of China's tort liability law

Ø (1) adjust the tort liability law of the social relation is a kind of special social relationships, it is between the right to compensation and compensation for damages is the core of the relationship between rights and obligations, the tort. 

Ø (2) of tort law is the sum of a group of related laws and regulations, including not only "the relevant provisions of the general principles of the civil law" of the relevant provisions of other laws, including the file, its origin is widespread. 

Ø (3) a part of tort liability law belongs to civil law, the adjustment of the object is equal to the main property and personal relations. 

V (two) of China's tort law system

The legislative structure of the tort liability law of v1. in China

The scientific structure of the tort liability law of v2. in China

Two, the position of tort law in civil law

(a) the position of tort law in the civil law

(two) the relationship between tort law and other legal departments

Ø 1 tort liability and criminal law "

Ø 2 tort liability law and administrative law "

Ø 3 tort liability law and economic law "

Ø 4 tort liability law and labor law

Ø 5 tort law and insurance law "

Source of three, China's tort liability law

Ø 1 constitution "

Ø 2 general principles of the civil law "

Ø 3 separate civil laws and other legal documents "

Ø 4 judicial interpretation

Ø 5 civil custom and the theory of civil law

The second sectionTort liability system

A, tort liability system

V (a) to adjust the object of tort liability system

V Tort liability is the civil liability for infringement of the referred to as. Tort liability system is the sum of legal norms that tort civil liability way to adjust the perpetrator and the victim from the infringement of the interests of the. The tort liability system including general tort liability elements, compensation principles, compensation calculation amount, type, special tort imputation principle, exception condition, liability subject, compensation calculations etc..

V (two): by the infringement of rights and interests against (the object of torts)

V1, civil rights: property rights, personal rights; rights... Absolute right...

V2, civil legal interest: not rise for civil rights and interests of the

(1) against the interests of property -- the pure economic loss in the

V usually think the economic loss may be necessary to protect in the following circumstances: 

The direct economic loss of V accident loss.

The V indirect economic loss.

V related economic losses.

V of defective products or defective building diminution in value.

V has failed to fulfill the responsibility of dereliction of duty.

V misled and service fault.

(2) for infringement of personality rights -- spiritual interests 

The common type of mental damage, spiritual interests and damage the following types of concern: "

Ø family ethics "

Ø the good custom emotion "

Ø religious emotion "

Ø the natural and cultural environment of emotion

The protection of the interests of the fetus students personality

Ø the protection of personality interests

Ø particular Memorial

Status of V two, tort liability system in the civil law

V (a) tort liability system is the civil rights protection law

V Rights of civil law is the law. Civil law of civil subject extensive civil rights, when the civil rights have been violated, the civil law as the civil subject to provide relief is tort liability system (claims except). Tort liability system by allowing the perpetrators of cessation of the infringement, eliminate prejudice, restitution, compensation for damages, the complete state of civil rights restored infringed, so as to realize the protection of civil rights.

V (two) tort liability system is a legal system independent of debt law

V In France and Germany as the representative of the civil law countries, the liability for tort obligation norms in theory, think tort is a debt according to tort damages, there is a relation between the debt (legal debt).

V Look at the issue from another aspect, the tort liability as the debt according to the occurrence, order theory in violation of the legal concept.

V three, tort liability system function

V Tort liability system is the function of legislation through the tort liability system to achieve the purpose of. It determines a series of important problems of tort liability imputation principle etc.. The tort liability system function with the development of social change and iterated through changes, through sin, punishment, to fill the damage and injury prevention.

V (a) to fill the damage function

V To fill the damage is the basic function of tort liability system. Civil liability and harm to bear the compensation for losses, the purpose is not to punish, but to fill the loss of the victim.

V (two) prevention function

V Tort liability system to point out what should undertake what kind of responsibility for the society in general, people set the norms of behavior, on the other hand, clear protection of rights and interests, to educate people to respect the rights of others, careful, the violator shall bear the adverse legal consequences, the people draw on the advantages and avoid disadvantages of psychological, to prevent damage to.

The third section Tort

The concept and features of V, tort

(a) the concept of tort

A tort is a civil subject violation of civil obligations, infringes upon the lawful civil rights and interests, it shall assume the civil liability act. Tort law is caused by the fact of tort, including the offender himself against others by tort law to protect the civil rights and interests of the employees, including the guardians, such as damage to people or objects to cause damage to the facts of the situation. The concept of tort, directly from the Rome law private offense. Rome law the so-called private and quasi private crime committed differentiation. Generalized tort include the offender himself tort (special tort) and quasi tort (tort others and objects cause damage situation).

V (two) has the characteristics as follows the law of tort:

V1, the infringement is illegal

V Here the so-called illegal behavior, essentially refers to the violation of civil obligations, infringes upon the civil rights and interests of the.

A violation of the V2, torts is another absolute rights and lawful civil interests

V Infringement actions is an absolute right, including personal rights (including the right of personality and right of identity), ownership, various he property, inheritance rights, intellectual property rights.

V3, a tort is shall bear civil liability in accordance with the law

V Infringement actions is other people's civil rights and interests, it shall bear civil liability according to law, rather than administrative responsibility, criminal responsibility.

The difference between V two, infringement and related behavior

V (a) act of tort and breach of contract

V The default behavior is the parties to a contract in violation of the obligations stipulated in the contract act. The establishment of the breach of contract exists for the premise, no contract or the contract is invalid or does not exist, there would be no breach of contract. The tort does not have the contract between the parties as the condition.

V1, in violation of the obligations of different;

The object V2, against different: absolute right; relative right

V3, produced by the different;

V4, take responsibility in different ways

V (two) distinguish tort obligation and tort civil liability

V Tort obligation, refers to the victims and perpetrators claim for compensation and payment of compensation claims and debts for the content of the relationship; and tort civil liability, is refers to the civil legal consequences as a result of the implementation of civil subject of tort should bear.

V1, the debt should be a certain obligation; liability is the legal means to enforce this obligation, namely to fulfill this obligation of guarantee.

V2, debt and claim together; the responsibility and right of action together.

V3, produced by tort debt mainly damages; civil liability for infringement of rights is not limited to the liability for damages.

All provisions of V4, tort obligation is obligation; tort liability or not applicable, such as offset.

V5, tort obligation is arbitrary; civil liability of tort is mandatory.

V (three) the difference between the debt of the tort claims and other claims (absolute petition):

Basic rights, different V1 attachment

V2, and the exercise time is different (impaired credit right is established;)

V3, different functions (fill function; recovery satisfactory state)

V4, the exercise of the different elements (damage and the subjective fault; not at the expense of the consequences of elements, not the subjective fault)

Application of different V5, the limitation of action

The effectiveness of V6, to achieve different (claims resulting in the achievement of tort obligation elimination of creditor's rights; the realization of the right to request the absolute right not to destroy the foundation of rights)

V7, claim right to eliminate the consequence is different (the right to request the tort claims to eliminate debt leads to incomplete state, losing force; absolute right to eliminate means basing rights in a state)

V (four) tort and criminal behavior

V The violation of tort is private, and the crime of infringing behavior may be both private and public, may be, may also be the social and public interests; infringement of privacy act, only if the circumstances are serious, to constitute a crime, and tort without this requirement; crime to act with intent or negligence (only a special provision in the law case, negligence can constitute a crime), and tort without considering the subjective state of human behavior.

Classification of V three, tort

V (a) general tort and special tort

V According to the constitution of the liability for damages have no special provisions, the tort is divided into general tort and special tort.

V The general tort refers to laws and no special provisions on the elements of liability for compensation, the general provisions of the applicable law on tort liability, and by the acts themselves bear the responsibility of tort.

V Special tort refers to the legal liability or responsibility has special provisions of tort. "General principles of civil law" 121st to article 127th of the act of tort is a special tort.

The difference between V special tort and general tort:

V Liability for general tort damage must have subjective fault elements, the establishment of special tort liability does not necessarily subjective fault elements; the general tort by the act on their own responsibility, responsibility of tort behaviors may be the person other than the. In the application of the law, special tort shall be of the law, the law has no special provisions, shall apply the general tort.

V (two) as the infringement act and omission tort

V As tort refers to the act in violation of the obligation of omission, infringement of the rights of others in a positive way as the act of tort.

V Omission tort refers to the act in violation of the obligations as, not the implementation of behavior caused damage to others shall implement the behavior.

V (three) alone the infringement behavior and joint act of tort

V Alone the infringement behavior refers to a single implementation of tort.

V Joint tort refers to infringe upon the civil rights act of two above the implementation of the joint intent or negligence on the tort.

V"General principles of civil law" 130th stipulates: "more than two joint tort causes damage to others, he shall bear joint and several liability." Joint tort except must have the general tort conditions, should also have the following three conditions: more than two people most of human behavior; subjective joint fault -- common intent, joint negligence or intentional and negligent mixed; damage results are the same, indivisible.

The second chapter The system of liability for tort liability in China

The concept of V, principle of imputation

V (a) defines the imputation principle

V "Liability" means when the damage occurred, to determine the attribution of liability basis, i.e. when the tort causes damage to others, by what reason to responsible for, namely the causal relationship between the illegal behavior and damage are identified, decided to harm people responsible for the damage of the basis. Imputation principle is the general rule of its responsibility. Imputation principle is the core of the tort law, is the basic criterion of guidelines and judicial legislation. The principle of determining liability scientifically, establish logic responsibility principle system, is the key content and system construction of the whole tort law.

V (two) study on tort liability imputation principle should be based on the following basic understanding:

V first, only for a certain class of some form of liability tort imputation principle, and does not apply to all violations of all forms of responsibility imputation principle. On principle of liability should not only distinguish the different kinds of tort, and should distinguish the different kinds of liability form.

V second, it is the responsibility of the form, and the fault is related to the liability for damages, other forms of liability, such as stopping the infringement, the return of property, restitution, eliminating the danger, determined by the nature of itself, and the behavior of people blame. Said the imputation principle of tort liability refers to damage the imputation principles of liability.

V third, for which type of tort, liability without fault caused by the coping behavior responsibility undertakes by legislators, is selected according to the result of legislative policy.

V two, China's tort liability imputation principle system

V Imputation principle system, refers to the act of tort on the imputation principles of liability for damages system.

V There are different opinions on China's tort liability imputation principle scholar, summed up in the following four kinds: one yuan said. That the principle of fault liability is the principle of imputation of tort law in our country only. Two yuan. That the imputation principles of the tort law of our country is the principle of fault liability and no fault liability principle. Three yuan. There are two kinds of views, one view, the imputation principle of tort law in China is the principle of fault liability, the principle of no fault liability and fair liability; one that is the principle of fault liability, fault presumption principle and justice principle, people who hold this view believe that China has no liability without fault.

V The principle of imputation principle of "" not with the basic principles of the civil law "principle of" make the same understanding, it refers to is just a rule in determining the responsibility of.

V (a) the principle of fault liability

V The principle of fault liability is also known as the principle of fault liability, refers to the behavior person's fault as the imputation principle of imputation basis.

V fault liability principle has the following characteristics:

V (1) to the tortfeasor's fault as liability elements. Fault includes intention and negligence.

V (2) has a universal significance of application of principle of fault liability. No special provisions of law, which should apply the principle of fault liability.

V (3) in accordance with the principle of distribution of burden of proof, the victim requests the offender assume responsibility for damages, should be demonstrated that the offender is at fault for the damage.

(two) the presumption of fault

V Presumption is a method for judging launched an unknown fact according to the known facts or judgment. Presumption of fault is refers to, in order to protect the interests of the victim, the law in certain circumstances, the offender only prove that there is no fault of their own, can not bear civil liability, namely the law first presumed perpetrators have fault, should bear the responsibility, but allow the offender by prove no fault and unloading responsibility.

V Fault presumption is a method to determine the behavior of fault. Refers to the plaintiff to prove their damage is caused by the defendant's behavior, if the defendant cannot prove that he has no fault, which is according to the defendant guilty, namely the law does not require the plaintiff to prove that the defendant has fault, but requires the defendant to prove no fault for the occurrence of injury, if the defendant cannot prove no fault of the occurrence of damage, it finds its fault.

V The presumption of fault has the following characteristics:

V 1, remove the victim to the burden of proof for the offender's fault.

V 2, the burden of proof responsibility inversion.

V Scope 3, presumption of law is limited to.

V 4, violation of law to protect others for the purpose of, presumed to be at fault.

V (three) the principle of liability without fault

V 1, the concept and characteristics of no fault liability

V No fault liability refers to the subjective, ask whether there is fault, as long as the behavior causes damage to others shall be liable for damages, imputation principle of liability.

V no fault liability has the following characteristics:

V (1) and not to the perpetrators of subjective fault as liable for damages conditions.

V (2) a causal relationship between the illegal behavior and behavior and the harm is sufficient conditions of liability established.

V (3) no fault liability does not result liability, law still can prescribe certain exemptions.

V (4) scope of application of the no fault liability should be stipulated by law.

V (5) victims in the claim, the perpetrators have subjective fault does not bear the burden of proof; the offender nor its own no fault in favor of exemption.

V 2, no fault liability legislation reason

V (1) basic thought of no fault liability, not that violations of the sanctions, but lies in the rational allocation of the "unfortunate injury". The dangerous business, facilities, goods all people, the holder may through the price mechanism and insurance mechanism will damage the scattered, and shall be liable for compensation.

V (2) engaged in hazardous enterprise or dangerous goods, facilities for all people, created a dangerous source holder shall bear the risk, because the (accident) caused by the loss.

V (3) to a certain extent, only these enterprises, all people, hold control these dangerous talent may be, it shall bear the liability for compensation, beneficial to its active measures, prevent the occurrence of damage.

V (4) the benefit risk, consistent with the concept of fairness and justice.

V (four) about the principle of strict liability (common law)

V The concept and characteristics of the 1, the principle of strict liability

V The principle of strict liability, is a kind of not paying for the reasonable attention obligation and responsibility of the general liability standards more stringent standards of responsibility. Is the legal standard, if should avoid harm incident, the behavior is responsible, whether as to how the duty of care and take preventive measures.

V the principle of strict liability has the following characteristics:

V (1) and the fault liability, is a kind of responsibility standard.

V (2) compared with fault liability stricter.

V (3) in the defense, the parties may not be without fault and defense.

2, the difference between: (1) the difference and fault liability; (2) the difference and no fault liability; (3) the difference and absolute responsibility

V (five) equitable liability principle

V The concept and characteristics of 1, equitable liability principle

V Our country is usually called the fair responsibility principle, that the parties to the occurrence of the damage were no fault, also do not belong to the law should be applied to the principle of no fault liability, in accordance with the concept of fairness, an imputation principle to give appropriate compensation from the offender property damage to the victim.

VEquitable liability principle has the following characteristics:

V (1) equitable liability principle applies to both parties have no fault conditions.

V (2) equitable liability principle applies only to property damage compensation, is not suitable for non property damage compensation. Property damage can be directly against property damage, also can be the property damage caused by the infringement of personal rights.

V (3) based on the principle of equitable liability is not the tortfeasor's fault, but to determine the tortfeasor is based on the concept of justice.

V Scope 2, equitable liability principle

V(1) "to define the nature of tort liability law" article twenty-fourth

V(2) application of specific cases:

V first, has the property of the person without civil capacity or with limited capacity for civil liability for damage caused by people who;

V second, no damage to people caused by consciousness or lose control of the full capacity for civil conduct human responsibility;

V third, appropriate emergency avoidance of responsibility;

V fourth, the damage caused by the parabolic towers responsibility;

V fifth, the application of fair responsibility in the responsibility of.

V 3, the principle of equitable liability can become the imputation principle of law

V (1) say (Wang Liming advocated)

V (2) negative (Zhang Xinbao, Yang Lixin advocated)

V (3) reflect the principle of fairness in tort law:

V first, in the fault liability, no liability without fault, is the embodiment of the traditional concept of justice;

V second, in the no fault liability, a new equilibrium point for justice, protection of the weak interest but not too demanding on the perpetrators of the fair;

V third, in some damage sharing, bear the party is not responsible, but not sharing the damage compensation, but compensation is fair, do everything in one's power sharing.

V so, is to reflect the principle of fairness, the principle of fair liability shall not.

The third chapter of constitutive elements of general tort liability for damages

The first section Summary

V The general tort refers to the law of liability without special provisions, and by the acts themselves bear the responsibility of tort.

V The damage of general tort liability elements, in theory there are three elements and four elements.

V The three elements to fault absorption law, that the elements of compensation responsibility for damage caused by the damage fact, causality and fault. The speaker claims three elements that, through no fault of illegal and not illegal fault is also not understand, so the law should not be an independent element, which contains the fault.

V The four elements are considered illegal behavior, is an objective fact, but the fault is the perpetrator's subjective state of mind, the two elements should be as independent.

The second section Damage constitutive requirements of liability

V, illegal behavior

V Illegal to behavior person shall bear civil liability, including the damage conditions of liability. Illegality refers to the act in violation of the provisions of the law, infringement of the legitimate rights and interests of others.

V (a) criteria of illegal

V One is the act violates the clear provisions of the law.

V One is the actor infringes the lawful civil rights and interests of others, and does not stop illegal matter, which constitutes a violation of the law.

V According to the basic principle and the judicial interpretation of civil law in China, in China, the deliberate violation of civil subject legal interests, including the interests of property and personal interests, tort.

V (two) as illegal and not as illegal

V Tort can be divided into an act of infringement and omission tort.

VOmission tort shall meet the following conditions:

V (1) to be the existence of obligation as the prerequisite.

V (2) shall be a breach of acting obligation and not as a fact.

V (three) stop illegal reasons

V Although the behavior violate other people's civil rights and interests, but the defense law, illegal behavior can be ruled out.

V China's law can prevent illegality defenses have to perform their duties according to law, without force majeure, self-defense, emergency hedge, the consent of victim, the victim's fault, fault of the third party.

V two, the fact that damage

V (a) the concept of damage

V Damage is the main civil interests and personal interests damage, including damage to the interests of the rights have been infringed upon the protection of the rights and no damage to the interests of.

V as the key elements of the torts liability of damage, shall meet the following conditions:

V 1, the deterministic. Determination of damage refers to, damage has occurred, is real, and not subjective speculation.

V 2, damage to be remedial. Can remedy means, damage with a serious in some extent, the law considers it necessary to give remedy.

V (two) classification of damage

V damage can be divided into the interests of property damage and personal interests of the damage.

V 1, property damage

V The interests of property damage can be divided into the loss of interests and interests of loss, also called the direct loss and indirect loss.

V 2, personal interests damage

V Personal interest damage and damage to the spirit damage, non property. Refers to the natural person due to personality right and specific identity right or other personal interests are damaged caused by psychological distress and physical pain, and negative damage, namely the insanity (vegetable).

V three, violations and the damage has a causal relationship between the consequences

V (a) the concept and meaning of causality

V Causal relationship refers to the relationship between things cause and the cause, cause he things happen for reasons, be cause for results. Illegal acts and damages the causality between the tort liability is the objective basis.

V (two) classification of causality

V According to certain standard, may carry on the different classification of causation.

V 1, a direct causal relationship and indirect causal relationship

V 2, a result of a fruit, a fruit, a result of more fruit and multiple causes multiple effects

VA result of a fruit is a cause of a damage results.

VA fruit is the reason more than two caused a damage results.

VA result of more fruit is a cause of several damage

VMultiple causes multiple effects refers to cause more than two cause two more damage results

V3 about the inevitability and contingent causality

V Necessity and contingency is the study of the law and trend of the development of things, the causality research between the two phenomena of the cause and the cause relationship, they belong to different category in philosophy. The causation in tort law is divided into the inevitable and accidental, can only make people feel at a loss, confusion to the judicial practice. Therefore, we believe that the causal relationship theory, should be classified to abandon causal relationship and accidental causation, and a direct causal relationship and indirect causality classification.

(three) the main theory in the two legal systems about causality

The main theory of continental law system, u causality

U 1  conditions.

U 2  causal relationship.

U 3  probability causal relationship.

The causation theory in tort liability act on u

U 1  the law of cause and effect relationship and causality in fact "

U 2  the proximate cause theory "

V (four) test method of causality

Of the 1, the time of the order

Objective 2, reason for the phenomenon of the U

3, the necessary conditions for the inspection

U (five) the identification of causal relationship

V The theory of civil law dominated by two stages method of thinking in determining causal relationship, the first phase of causality in fact determined, which determine the defendant's conduct should be in charge of by him or whether an event in fact is the reason of damage, the second stage determines the cause in fact the behavior or whether a cause to be responsible for the damage in law.

V four, the actor has fault

V (a) the concept of fault

Fault is a kind of responsibility of mental status of the offender, expression is intent and negligence of two forms.

(two) intentionally

U 1, intentional concept and classification of the

U 2, intentional culpability

U 3, deliberately content "

(three) negligence "

The concept and classification of 1 students, negligence

Ø 2, fault accountability "

Ø 3, fault content

4 students, the degree of fault

Ø the judgment standard of four, fault

L (a) "good faith the man (reasonable man)" the attention degree requirements

Good faith man u, 1  tort liability law. ""

U The degree of attention 2  "good faith of the people"

U 3  to "good faith" man "general" grasp "

L (two) laws, administrative regulations and procedures required to pay special attention to the requirements of the degree of

L (three) about the party's own situation

The fourth chapter Defense and loss sharing

The first section Summary

V, defense

V Although some behavior violate other people's civil rights and interests, the defence but with law, the illegal behavior can be eliminated and exemption from liability. China's law negates the defenses are performing their duties according to law, without force majeure, self-defense, emergency hedge, the consent of victim, the victim's fault, fault of the third party.

V two, defense type

U 1 justification defenses and external causes of counterplea.

U 2General defenses and the special demurring reasons.

U 3Absolute exemption defenses and relative exemption defenses.

Defense ü 4 exemptions and reduced liability defenses.

V The second section Justifiable defense

V (a) to perform their duties according to law

V The performance of duties as defenses must meet the following conditions:

V1 must be authorized by the legal or lawful;

V2  behavior must be in the legal provisions or the authorized scope, beyond the scope of the behavior cannot be regarded as the performance of duties;

V3 damage was performing the duties required, which not only in damage can not perform their duties under the condition, the action can be justified, can become a justification.

V (two) of self-defense

V Justifiable defence is to make the public interests of himself or others, property, personal against the ongoing illegal violations, defensive behavior and take on the illegal act I.

The condition of justifiable defense

The object condition U 1 justifiable defense

U 2 purpose of self-defense conditions "

U 3 time conditions of justifiable defense

U 4 limit conditions of justifiable defense

V (three) emergency

V Emergency refers to the risk to avoid public interests or the lawful rights and interests, I suffer from ongoing damage, forced to take the interests of the damage to another.

1, emergency necessary limit and the effectiveness of the

2, the emergency exceeds the limits of necessity and measures of the consequences of improper placement

(1) the danger is from natural causes.

(2) the danger is caused by the third person.

(3) the danger is caused by risk aversion people.

V (four) the consent of victim

V The consent of victim to suffer beforehand definitely willing to assume some of the negative consequences.

V1  the victim's consent must be voluntary, agrees and make due to fraud, coercion, and other major misunderstanding that cannot be used as the exception condition against the people;

V2  the consent of victim said must be clear, and must take the way of expression;

V3  the consent of victim is not in violation of the law prohibiting sexual and public order and good customs;

V4  the consent of victim is the damage occurred prior to, after damage to said, it shall be regarded as the victim voluntarily remove the perpetrators of the responsibility;

(five) - (self-help) 

1 self concept and components "

As one of the justification defenses of self-help, shall have the following elements:

V (1) the purpose of the elements.

V (2) form elements.

V (3) object elements.

V (4) limit condition.

The effect of 2 self-help

The third sectionExternal causes: no defense force and accidents "

A, irresistible force

(a) three theories about the irresistible and unavoidable concept "

1 subjective theory.

The 2 objective.

3 the compromise.

(two) classification of the irresistible

1 of natural causes without force majeure "

As the natural phenomenon of irresistible, must have certain conditions, including:

(1) unpredictable.

(2) unavoidable and insurmountable.

Objective (3).

2 social causes the irresistible force "

The social reasons of irresistible force, also should have three conditions:

U (1) unpredictable;

U (2) is unavoidable and insurmountable;

U (3) the social reason, which causes the event from society, and not because of the fault, fault of third person, the state administrative or judicial authority or natural phenomena.

The 3 countries with the exception of force majeure causes the

As a national cause unavoidable should have three conditions:

U (1) unpredictable;

U (2) is unavoidable and insurmountable;

U (3) national reason, which causes the event from the national administrative or judicial power in accordance with law, and not because of the fault, the fault of the third person or natural phenomena.  

(three) without force majeure as defenses effect "

1 the incontestable effect on resistance to fault liability case "

2 no resistance to the defense effect of no fault liability cases

Two, about the accident "

The accident, which is not the intent or negligence and fortuitous accident. Whether it is on the basis of the current legislation of our country, or from the theory and judicial practice in our country, in the law of tort liability, accident can not constitute a defense, its reason:

U (1) from the legal logic point of view, accident and irresistible force has a relationship, not the two completely different

U (2) China's "general principles of the civil law" is not the accident for a defense;

U (3) advocated the accident as the defenses, is completely apply the theories about irresistible, there is no theoretical innovation.

The fourth section External causes: the defense victims fault, the fault of the third person

One fault of the victim, as defenses

(a) as the victim fault defense

(two) the victim fault elements "

U 1 victims of subjective fault and the severity of the legal

U 2 victims out some behavior

A causal relationship between the behavior and the damage of 3 victims

U 4 victim claim damages "

(three) the fault of the victim as the effectiveness of defense "

Two, as the fault of third person defense

(a) as defenses the fault of the third person of the

(two) the fault of the third person, as a defense of the Constitution

1 of third people has fault "

2 third implemented based on fault the tort "

The fault behavior of 3 third people constitute the damage reason of happening or enlarging of the

(three) third fault Defence Force

1 the fault of the third person and the joint tort "

2 the fault of the third person as effective defense

(four) the scope the fault of the third person of the defense

To the fault of the third person as a plea, originally for the theory of causality (in whole or in part because third people have fault behavior of damage) and the theory of fault liability (liability, the defendant only due to his fault and fault undertakes others caused by the damage liability) extension, therefore, infringement cases it generally applies to fault liability.

V The fifth section The particular case of loss sharing

V In real life, the cause of the damage is very complex, the fault liability principle and the principle of liability without fault can not resolve the issue of compensation for all losses. And, in some cases, due to the occurrence of the damage no fault, it shall bear the liability for compensation seem fair (except by reasons attributable to risk the business to engage in dangerous liability).

V To these problems, the law must find another solution. This approach is called the fair liability and equitable liability. We think, called the loss sharing seems more appropriate. "General principles of civil law" provisions of the loss sharing under any of the following circumstances:

V (a) the parties have no fault in case of loss sharing

V "General principles of civil law" 132nd stipulates that: "the parties do not cause damage to the fault, according to the actual situation can be shared by the parties, civil liability." This is the "general provisions of the general principles of the civil law" on the allocation of loss.

V1  applicable loss sharing conditions

V (1) the parties are not at fault for the damage;

V (2) does not belong to the provisions of the law shall apply to the no fault liability situation.

Factors to be considered in V2 distribution loss at

V (1) the extent of damage;

V (2) of the financial situation of the parties. Generally speaking, the economic situation is good the parties shall bear some losses;

V (3) other factors should be taken into consideration.

V (two) the beneficiary by the loss of the victim compensation

V "General principles of civil law" 109th stipulates: "due to prevent, stop state, collective property or the property of others, the person suffers damage, the infringer shall bear responsibility for compensation, the beneficiary may also give appropriate compensation." The basic spirit of the provisions of this article is to do boldly what is righteous and their damage people to provide legal relief measures, encourage citizens to actively with crime and accident struggle.

V Application of "general principles of the civil law" article 109th shall meet the following conditions:

V1  do boldly what is righteous behavior damage, including property damage and human casualties.

V2 has specific beneficiary.

V3. The victim can't can get compensation from the offender.

V (three) share the necessity of damage caused by

V "Implementation of the general principles of the civil law", if the emergency caused the damage, if the danger is from natural causes, actions to take measures without properly, the behavior is not bear civil liability. The victim compensation, appropriate compensation ordered to the beneficiary, it is actually share the loss by the beneficiary and victim.

V Beneficiary and victim to share the losses caused by emergency shall have the following three conditions:

V1  danger is from natural causes or not attributable to the party's cause;

V2  hedge to take emergency measures is not wrong.

V3  hedging benefit of a specific person or persons.

V three, negligence offset

V (a) the concept of negligence offset

V "General principles of civil law" 131st stipulates: "the victim is also at fault for the damage, the civil liability of the infringer can be appropriate to reduce the."

V In the theory of civil law, the system is called comparative negligence. Contributory negligence, contributory negligence or comparative negligence, refers to the occurrence of the damage or expand also has the fault, may be appropriate to reduce or waive liability of perpetrators, is the embodiment of principle of fault liability in tort liability system. Contributory negligence is not the fault of the victim offender to offset fault, its essence is the guardian's fault and the fault of the victim is measured to determine the liability of guardian, have no and scope. The legal basis of contributory negligence, that is fair and honest credit principle. The offender should only responsible for their own behavior, but not the cause of the fault of others responsible for damages.

V (two) negligence elements

Behavior of V1. The victim and the offender is the cause of damage, but also damage the result of identity.

V2. The occurrence of the damage is at fault.

V (three) application of negligence offset

V That our civil law theory, comparative negligence is only applicable to the fault liability of the occasion, the no fault liability does not apply contributory negligence.

V (1) of the victim to the same occurrence or expansion of the damage of intentional, negligence, can be reduced or relieved of liability obligations;

V (2) damage to people caused by the victim intentionally or negligently, the victim only ordinary negligence liability obligations, people do not reduce;

V (3) in the obligor shall bear the liability without fault of the occasion, the victim has gross negligence, the liability for compensation can reduce the obligation to compensate people.

The fifth chapter The concurrence of liability and related problems

The first sectionOverview of the civil liability concurrence

The concept of V, the coincidence of civil liability

V (a) liability with the concurrence of the norms in

V (two) generalized and narrow sense of the concurrence, concurrence

Characteristics of the V two, the coincidence of civil liability

V (a) illegal acts only on the implementation of a wrongful act "

V (two) the same illegal act in violation of the two or more than two civil legal norms, consisting of two or more than two civil liability

V (three) of a number of civil liability conflict "

V (four) request the concurrence of right "

The second sectionTort liability and liability for breach of contract

A, breach liability and tort liability concurrence

Tort liability and liability for breach of the relevant provisions of the concurrence, is refers to the same illegal act which violates the act of tort law, accord with tort liability elements, in violation of the relevant provisions of the contract law or the agreement between the parties, in accordance with the constitution of the liability for breach of contract, and thus produce tort civil liability for breach of contract and civil responsibility conflict phenomenon. Tort civil liability for breach of contract and the civil liability is the civil liability of the two kinds of most basic. In the field of civil law, tort liability mainly occurs between tort liability and liability for breach of contract.

The relationship between V two, the liability for breach of contract and tort liability

V liability for breach of contract and liability for breach of contract or contract responsibility, refers to the contract fails to perform the contract obligations (i.e., the obligation of the parties) legal responsibility according to the law of. And tort liability is the civil liability of illegal violate others legal civil rights should be borne in accordance with the law, or other obligation of compensation in accordance with the provisions of the law directly should include the compensation responsibility of civil liability. Liability for breach of contract and tort liability is the civil liability, which is among the two most basic identity. Inductive different scholars will breach liability and tort liability nine aspects:

U (1) different imputation principle.

U (2) the burden of proof is different.

U (3) obligations of the contents of different.

U (4) time difference.

U (5) liability and exemption conditions.

U (6) form of liability is different.

U (8) on the responsibility of the third different.

U (9) under the jurisdiction of different.

Three reasons, the concurrence of liability

Legislative countermeasures four, liability concurrence

(a) the forbidden concurrence

(two)  allowed concurrence

(three) the limitation of competing

Five, the contract law of our country legislation "

The third sectionTort liability and liability of restitution of unjust enrichment

A, tort liability and liability of restitution of unjust enrichment

V (a) the concept of "unjust enrichment

V (two) conditions in the tort liability and liability of restitution of unjust enrichment

U 1 beneficiary implemented injuring behavior, and cause damage to others. 

U 2 beneficiary benefit because the implementation of tort. Increase profit including active property and the reduction of property without reducing. 

U 3 beneficiary without legal basis.

V (three)  causes of tort liability and liability of restitution of unjust enrichment

Two, several theories about the return of unjust enrichment concurrence of tort liability and the

(a) the concurrence of negation "

(two) affirmed the concurrence

(three) limit the concurrence

Three, China and theories

The second series Theory -- specific act of tort and its liability consists of tort liability law

The sixth chapterOverview of the general tort liability law

The first section Types of tort

V, intentional tort and the tort of negligence

V two, a separate tort and tort

V three positive and negative infringement, infringement

V four, joint dangerous act and the common tort

Tort V five, against the infringement and infringement tort, infringement of creditor's right people right infringement, infringement of intellectual property rights

The second section The liability of infringement of property rights

A, trespassing elements "

(a) the illegal invasion behavior

Object v 1 illegal invasion "

V 2 illegal intrusion is a kind of active tort "

V 3 illegal intrusion is direct infringement of people

Illegal V 4 illegal intrusion

(two) the damage

(three) the causation and fault

Two, obstruction of elements

(a) nuisance "

(two) the damage

As the elements of infringement of property rights, the damage was caused to the consequences of the wrongful act. Nuisance as illegal behavior, its consequences usually include the following situations:

V (1) to the victims to exercise the ownership of immovable property or his real inconvenience, causing the production, life adversely;

V (2) does not produce the actual value or utility to make the victim's treatment;

V (3) property damaged.

V three, the occupation of the elements

(a) the act of Embezzlement

V 1 object.

V 2 behavior.

The content of V 3 behavior.

(two) other elements: the 1 subjective; the 2 damage, causal relationship.

Four, the damaged elements

(a) the damage behavior

(two) the other elements

1 fault.

2 damage and causality.

Question: can become the object of tort law protection of possession?

1, the difference and the rights of possession

2, has become the object of tort law for protection

3, violated possession of tort: Hijacking occupy behavior, nuisance occupy behavior

4, the scope of damage compensation: the use of possession, possession damage on expenses damage, liability, damage caused by infringement of possession possession acquisitive prescription interruption compensation

The seventh chapter The civil liability of the third party infringing creditor's rights

V, there are two kinds of infringement of creditor's rights

V debtor against third infringement

V two, to establish the theoretical basis of third party's infringement on creditor's rights

Type V three, the third party's infringement on creditor's rights

V1, direct infringement

V2, indirect infringement

V (1) claims the subject of infringement

V (2) claims to meet the infringement

V four, third person against the claims of the elements

V1, injuring behavior subject is limited to third people.

V2, the damage must be lawful and valid claims.

V3, damage state can make the creditor's rights, the exercise is not to destroy, but also increase the cost of exercise difficult.

V4, direct harm behavior intention or negligence can be; but indirect harm behavior is only intent.

V five, infringement of the third party liability and conditions of exemption

V1, responsibility: third people alone; third people and the unreal joint liability; joint and several liability of the debtor and the third person

V2, disclaimer: competition; advice; perform their duties.

The eighth chapter The number of joint tort liability

The first sectionThe number of people of the common liability for tort "

The concept and classification of a number of common people, tort liability

(a) the concept and features of the number of people of the common liability

The concept of U 1  number common tort liability

Characteristics of the U 2  several common tort liability

Ø (1) subject to assume the tort liability for two or more than two people, is the body responsible for complex.

Ø (2) several consequences shall bear tort liability for the same damage, rather than the number of different damage responsibility.

Ø (3) number of people assume collective tort liability claim is between several main responsibility and victim party affiliation has diversity.

(two) the number of classification of common tort liability

On the basis of the provisions of civil law and judicial interpretation, the number of people will assume joint responsibility for the same injury, can make the following classification:

U (1) number one consequence of the joint liability of tort for the same injury;

U (2) the number of people on the same damage caused by a bear tort liability;

U (3) in a number of the main responsibility, responsibility subject to bear all the tort liability, tort liability responsibility subject complement. 

Two, the number of people the joint liability of tort

(a) the concept of "tort liability joint and several

(two) several liability shall bear tort liability joint after the internal compensation "

(three) the scope of tort liability of the joint

Tort liability joint applies to the following three situations: (1) several tort people implement the joint act of tort; (2) a number of dangerous act implementation of joint dangerous act; (3) the provisions of the law directly several liability joint liability of tort case.

The criminal law and judicial interpretation of the provisions of a number of subject of liability shall bear tort liability joint conditions include: 

Joint tort, U 1  advertisers and advertising agents

U 2  patent tort "

U 3  Securities Law of tort liability in the board of directors of the company

U 4  misrepresentation in the securities market legal tort liability "

Regulation u 5  "product quality law" of the common liability for tort 

Three, the number of people in a bear tort liability "

P (a) number of people assume the tort liability concept according to the

P (two) number of people take determined according to copies of the tort liability of the share

P (three) number of people assume tort liability scope according to copies of the

The four part, several people in the tort liability of tort liability, all bear additional

U (a) supplementary infringement liability concept "

U (two) the scope of tort liability, supplementary

The second section Joint act of tort

Elements V, joint act of tort

Above V two common infringes upon the civil rights and interests of the joint act of tort.

V 1  injuring human complex.

V 2  behavior of people with a common fault or the direct combination.

V The common means, namely behavior not only have a fault, and the fault content should be the same or similar

V The common behavior, namely the tort is associated with common and constitute a unified and indivisible whole, but the tort is a part of the consequences of damage causes an indispensable.

V Direct binding, is exponential behavior with very closely, the harm consequence, cause and harm of respective cannot distinguish

V3 damage results have the same.

V Results of damage is a unified, indivisible. This is the difference between joint tort and a number of independent tort (multiple causes multiple effects) is an important standard, and also an important measure of joint act of tort is established.

V4  several behavior and damage are causal.

V Occurrence of each behavior on the damage is cause. If an act and the harmful consequences no causal relationship, cannot undertake the responsibility.



The two, mainly in the form of joint act of tort

V (a) "joint principal offender"

V (two), help the instigator

V (three) about the gang set behavior of the joint tort liability "

The third sectionThe joint dangerous act

One, the concept of joint dangerous act

The joint dangerous act is also known as the "quasi joint act of tort", refers to two or more than two people together to implement infringe upon the civil rights of risky behavior, the consequences of the damage caused by unable to identify who is the perpetrator of the.

The Supreme People's court in the judicial interpretation of the provisions of: "the implementation of two or more co jeopardizes other people's personal safety behavior and causes damages, can not determine the actual infringement behavior, it shall bear joint and several liability in accordance with the provisions of the general principles of the civil law article 130th." The difference between joint dangerous act and the joint tort is joint act of tort, damage is caused by human behavior, and common dangerous act of damage was caused by one or more people's behavior, but not sure who caused the damage.



V (a) special constitutive requirements of joint dangerous act

V The joint dangerous act except must have the joint tort behavior, damage results for most people with the same condition, still must satisfy the following requirements:

V1  number to implement the risk behavior.

V2  unidentified injuring person.

V3  joint dangerous act and the harmful consequences associated with.

V (two) responsibility

V The common risk behavior on the harm shall assume joint and several liability, the relevant provisions about the joint tort can be applied to the joint dangerous act.

V (three) exemption plea

V Whether to participate in the risk behavior of people can not own behavior by prove that the damage caused by the exemption, have positive, negative and eclecticism.

Exception condition two, part of the common risk behaviors were

Generally, in the common risk cases to cause damage, "joint perpetrator" is presumed, should allow them to prove there is no causality between themselves without injuring behavior or their behavior and the damage to the victim, and from its responsibility. This proof, without proving others as the real perpetrators, also do not need to solve other perpetrators of uncertain problems. Cannot carry out this proof the remaining perpetrators were identified as the common risk behavior, bear the corresponding liability. "On the relevant issues concerning the application of law in the trial of personal injury compensation cases the interpretation of the Supreme People's court" article fourth: "the implementation of two or more co jeopardizes other people's personal safety behavior and causes damages, can not determine the actual infringement behavior, should be in accordance with the law through 130th shall bear joint and several liability. The joint dangerous actors can prove that the damage is not caused by its behavior, not to undertake the compensation responsibility."

The fourth sectionNo internuncial tort liability

V, without contact concept and characteristics of the tort committed by several persons

V1, no internuncial infringement and joint act of tort

V no internuncial tort, index is not behavior prior to the common fault, but because the behavior induced by the same accidental combination of the victim to suffer the same injury.

V no internuncial tort and common infringement behavior exist differences in subjective will, common fault among non internuncial infringer. Specific: each behavior common fault; each act came with the same damage to the victim; in consequence of liability, joint liability or liability by shares.

V2, no internuncial tort and polymerization of causality, accumulation of causality

Two non internuncial tort V "tort liability law" Eleventh article and the provisions of article twelfth, also can be understood from the angle of causality:

V (1) "tort liability law" stipulates that the eleventh causal accumulation of causality between, also known as the paradigmatic relation, i.e. if the behavior is sufficient to cause the entire damage, they should assume the joint and several foreign.

V (2) "tort liability law" stipulates that the twelfth causal part relationship, also called common causal relationship, is the index were against the implementation of the behavior of others, there is no contact with the subjective, the offender shall assume the tort compensation respectively. For such behavior, each person should act in accordance with the size of its responsibilities responsibility respectively, according to the fault degree and reason are responsible.

V two, without meaning contact several liability

V1, the accumulation of causal no internuncial tort

V features: the number of people commit a tort respectively, but there is no common fault; cause the same damage results; each tort is sufficient to cause the entire damage.

The accumulation of V causality how to take responsibility, there are two theories: the joint and several liability; liability by shares said.

V problem: how to understand the "tort liability law" article sixty-seventh

V2, the causal non internuncial tort

V features: the number of people commit a tort respectively, but no common fault; cause the same damage; each behavior alone is not enough to cause damage results.

The ninth chapterTortious liability of omission

The first section And take responsibility for the previous behavior of tortious liability of omission

One, because of his previous behavior and assume tortious liability of omission concept and characteristics

And take responsibility for the previous behavior of tortious liability of omission, is the result of previous actions and obligation of tort liability, because of the omission and cause damage to others bear.

Feature: it is not as a tort liability; it is the responsibility for our actions; it is the fault liability.

Two, the specific provisions

1, the stack damage liability ("tort liability law" provisions of article eighty-eighth)

Stacked by elements of responsibility of damage: stacking collapsed causing damage; breach of its obligations as the pile; the causal relationship between the omission and the damage of pile; pile of human behavior is illegal; stacking with presumption of fault

Liability caused by V2, ground construction

V (1) the main responsibility to cause damage to the ground construction

Responsibility to cause damage to the ground construction is the construction of people, rather than the project owners or managers. Construction refers to the construction task independent qualification of people , organizations or individuals, such as engineering, repair, or other independent to undertake the construction task. Engage in specific construction labor people are employed and the employer does not belong to the construction. However, if the unit or individual to hire repair personnel construction, responsible for their own command, the units and individuals shall be deemed as construction workers bear the responsibility.

(2) the ground construction elements of the damage caused by people

The author thinks, constitutive elements of ground construction to cause damage to the four, namely: construction behavior; damage; causation; presumption of fault, ground construction shall bear the presumption of fault responsibility. 

Construction refers to the behavior that the offender digging in a public place, on a roadside or in a passageway and repair, installation of underground facilities, and there is no clear signs and safety measures of behavior. This behavior has the following characteristics: behavior places; act as; action is not as.

 The damage is one of the elements of the ground construction of the torts act. This is explained, some special necessary for the damage caused by the ground construction "damage": first, the victim. Second, the type of damage. 

The causal link between the violations and the damage, the damage caused by the ground construction is one of the elements. In such infringement cases, identify the causal relationship is usually not complex, to demonstrate suitability of the method in general. But the appraisal conclusion of medical and scientific proof, often for personal injury is caused by the infringement has important significance. 

On the fault, this kind of tort liability, fault presumption of fault liability principle of victims, without the tortfeasor's fault proof and proof, but the perpetrators can prove otherwise exempted from liability. 

(3) the ground construction damage responsibility caused by bear 

(4) exemption conditions and other defense "

(a) construction person without fault "

(two) without force majeure "

(three) other defense "

The second sectionViolation of security obligations

One, the safety guarantee obligation overview

(a) the obligation of security concept

(two) security obligations of the subject and scope of the

1 security obligations of the subject "

For safety and security obligations of the subject is mainly engaged in accommodation, catering, entertainment and other business activities or other social activities of the natural person, legal person, other organization. Include.

(1) various operators engaged in business activities (the natural person, legal person, other organization).

(2) the other social activities of the organizers (natural person, legal person, other organization).

2 the scope of safeguard obligation "

The obligation of safety guarantee refers to the scope of the need to assume the obligations of the place. Need to undertake the safety control duty places a wide range of. Specific include: 

(1) of all business establishments.

(2) other social activities.

(three) the content of the security obligation

(four) the nature of obligation of security

Two, the concept and characteristics of violating the obligation of security

(a) the concept of tort liability obligations in violation of the safety guarantee

(two) feature in violation of security obligation of tort liability

1  violation of security obligation is liability for tort liability 

2  third people involved in the case, in violation of security obligation is liability "

3  causal relationship: the causality of omission problem under the

Three, in the absence of third party intervention in case of violation of security obligations obligations

1, in the absence of the third people involved in the tort liability of the obligation of security breach of the obligation in the case

The standard 2, fault liability and fault

3, the scope of responsibility "

The author thinks that there are two factors should be considered: (1) security obligor fault size. The fault is serious more pay, until the full compensation; fault smaller less compensation to reduce or exempt from liability.

(2) the victim has no fault and fault size. The victim is at fault, should reduce the liability; the fault of victim of major may exempt from liability. 

Four,In the third people involved in tort liability of the security obligation of the case breach of duty

1, in the third person tort liability in security obligations in case of violation of duty

2, fault liability and fault judgment standard

3, form of responsibility: the responsibility of compensation "

4, security obligations to fulfill the obligation of reparation after the right of recourse "

Interpretation (2003) No. 20 sixth shall perform the obligation of compensation of security obligations, obtained the right to recourse directly hurt third people. The operator after bear supplementary liability directly hurt the recovery of third human rights, there are several aspects of the basis:

(1) the fault liability requirements.

(2) the basic principles of the civil law principle of fairness requirements.

(3) the unjust enrichment rules.

The third sectionThe responsibility of the network service providers

Responsibility concept and characteristics of V, the network service provider

The V network service provider's responsibility, can be understood from the broad sense and the narrow sense ("tort liability law" provisions of article thirty-sixth)

V features: it is not as a tort liability; it is the responsibility for our actions; it is the fault liability.

Elements of V two, the network service provider liability

V network users utilize the network to commit a tort; network user behavior caused the victim's damage; the network service provider is not as; the causal relationship between network service providers of omission and the damage; the network service provider's behavior is illegal; network service provider has fault.

The fourth sectionThe responsibility of educational institutions

The concept and features of V, institutions of education responsibility

The tenth chapter Liability of Guardian



 a concept, guardian responsibility

Supplementary liability and raise two, guardian of the responsibility to advance the

V (a) the guardian of the supplementary liability "

V (two) to raise people's responsibility to advance the

Three, commissioned custody and guardians to bear the responsibility when the unknown

V (a) commissioned custody "

V (two) unknown to bear the responsibility when the guardian

The eleventh chapter Liability caused by the highly dangerous work



 a concept, highly dangerous operation

China's "general principles of civil law" provisions of article 123rd, is engaged in headroom, high pressure, flammable, explosive, toxic, radioactive, put high-speed transport operations, a highly dangerous to the surrounding environment, belongs to the highly dangerous work. It is an incomplete list of. Also provides for such infringement liability without fault and the conditions of exemption. Damage to people caused by the highly dangerous work, refers to the risk of operating the damage caused to others, working people internal staff do not include (employees), because of the highly dangerous work and damage. In the latter case, should be dealt with in accordance with the rules of industrial accidents. Have or possess, management of certain dangerous goods such as inflammable, explosive, toxic, radioactive substances, does not constitute a rigorous meaning of "homework", damage to people caused by the dangerous goods, their owners, occupiers, managers should also bear the responsibility. 

The imputation principles of liability caused by two, highly dangerous operation

(a) the main theory "

(two) the principle of imputation of liability without fault

The damage caused by the three, the highly dangerous work: as the highly dangerous work of the injurious act

(a) as a highly dangerous operation, "operation"

(two) the highly dangerous work and "environment" "

(three) the basic features of the highly dangerous operation

1 legal act "

2 high risk "

Four, defense "

(a) the victim intentionally "

(two) on the irresistible force "

(three) the fault of the victim, "gross negligence and contributory negligence" "

1 victims of negligence and gross negligence "

According to the "general rules of the civil law" provisions of article 123rd and legislative spirit and with reference to "railroad law", "road traffic safety law" and other laws and regulations and judicial interpretations, we can abstract the following general rules: e.g.

(1) the victim has no exemption conditions as the highly dangerous work of damages caused by the principle of negligence or gross negligence, but separate regulations there are special provisions except. 

(2) the exemption conditions general negligence can be used as a highly dangerous activity causing property damage in special circumstances, but not as an exception condition caused personal injury. 

(3) in order to maintain the "general rules of the civil law" as the authority of the civil law, safeguarding unity and protection of legal system in the weak status of victim one party interests, special regulations stipulated in the victim's fault or negligence as exempt from the damage caused by the highly dangerous work conditions should be strictly limited liability. 

2 "negligence" "

"Negligence" is a common system of various countries in the law of tort, its basic meaning is, when damage due to the fault of the victim caused by, not to the victim fault rejected the request for compensation, but they deserve the damages by the judges as appropriate to the degree of fair and reasonable. In the highly dangerous work causing damages to others shall apply the negligence offset system.

The twelfth chapter The road traffic accident responsibility



The concept and properties of a, the road traffic accident

Two, the road traffic accident liability and defenses "

(a) the imputation principle "

According to "road traffic safety law" provisions of article seventy-sixth, the imputation principle of road traffic accident responsibility, bear the liability principles apply to different for different circumstances liability. Specifically: 

1 insurance companies in the third party liability compulsory insurance liability within the scope of liability without fault.

2 road traffic accident social rescue fund for victims of the first advance to save the cost of liability without fault.

Traffic accident liability for fault 3 between motor vehicles.

And non motor vehicle driving for 4 people, between the pedestrian traffic accident liability without fault or strict liability.

(two) defense "

According to the provisions of the second paragraph of "road traffic safety law" seventy-sixth exemptions, the statutory is: intentionally caused by the victim of traffic accident. The provisions of the general principles of the civil law "and" the provisions of article 123rd is consistent. In addition to the victim intentionally can exemption, in the case of negligence, can also reduce the perpetrators accountable, reduced liability stipulated in "road traffic safety law" seventy-sixth article: irregularities in the victim, the motor vehicle driver has taken necessary measures and still failed to avoid the damage occurs, can reduce motor vehicle the driver's responsibility. 

Three, that the legal situation of fault and negligence of the

(a) to identify fault legal case "

In addition to the provisions of rights of way, "road traffic safety law" in some of the traffic participants of the statutory obligations, once the traffic participants in violation of these legal obligations and lead to traffic accidents, then the participant's behavior is considered to be at fault, it shall bear the liability for compensation according to law. I think that in some cases, road traffic participants behavior can be considered to be at fault: "

L1Motor vehicle driving motor vehicle driving safety facilities are incomplete or the parts are not in conformity with the technical standards, safety hidden trouble; "

U 2  in drinking, taking state control of psychotropic drugs or narcotics, or suffer from diseases hinder safe driving of motor vehicles, driving a motor vehicle or excessive fatigue influence the safety of driving situations; "

U 3  exceed the speed limit signs top speed marked driving or when no speed limit sign sections to exceed safe speed speed; "

U 4  four situations in the presence of "road traffic safety law" provisions of article forty-third of the overtaking

U 5  in violation of provisions shall not carry passengers or overload; "

The provisions of 6  violates the right of way.

(two) the road traffic accident liability in negligence "

Four, the road traffic accident compulsory third party liability insurance and liability of the insurer "

(a) the road traffic accident compulsory third party liability insurance of the concept and significance

(two) insurance and the insurer, the victim's rights and obligations in the

The range of compulsory p1. insurance third party liability insurance

P2. the insurance payment obligations, the right of recourse against the

The direct claim right of the victim, P3

Five, road traffic accident social rescue fund "

The following problems in the establishment of road traffic accident social rescue fund system should be clear: "

(a) the management mechanism

(two) the sources and uses of funds

(three) for duty and right of recourse



The thirteenth chapter expert liability

The first sectionThe expert responsibility

The concept, the expert liability

Property two, the expert liability: contractual liability or tort liability "

Three, the expert liability is a liability in the

The second section Other experts liability in the medical malpractice and medical staff

One, overview of the medical accident

(a) the concept of "medical accidents

(two) the nature and classification of the liability of medical malpractice

The properties of 1 medical malpractice liability

Classification of the U 2 medical accidents

Two, medical accident liability "

V (a) tort "

V (two) damage and causal relation "

Cause u 1 medical accident damage "

U $2 in medical accident causation "

V (three) fault "

Three, medical personal injury compensation scope, compensation standards "

The problem of damage by four, defective drugs, equipment etc.

The third section The lawyer tort liability "

The lawyer, tort liability

A lawyer for one of the expert liability of tort liability, it refers to lawyers (including full-time lawyers, part-time lawyer, invited lawyers, lawyers) in the execution of business lawyers for civil liability for damage caused by the fault of the parties should bear.

Two, the lawyer tort liability elements "

U (a) tort "

U (two) damage and causal relation "

U (three) fault "

Three, the liability for compensation "

The fourth section The CPA's liability for tort "

One, the CPA's liability for tort overview

U (a) a certified public accountant and practice "

U (two) legal provisions on the CPA's liability

Two, CPA's tort liability "

V (a) tort "

V (two) damage and a causal relationship "

V (three) fault "

Three, the liability for compensation "

In our country, the CPA always added a CPA practice activities, accept the entrustment and Commission (service charge) is always in the name of the accounting firm, therefore, the accounting firm to the CPA created in the practice of infringement, civil liability. This is the use of vicarious liability in the tort of registered accountants, certified public accountants the CPA's tort should bear the liability without fault. The current law does not state the CPA of limitation of liability for infringement issues. The author thinks, when conditions are ripe, the Institute of certified public accountants can establish professional risk fund, to pay based on negligence tort compensation; can also consider the risk in practice by the way of commercial insurance dispersion.



The fourteenth chapter Campus accident liability

One, the campus accident responsibility "

The concept of V (a)  campus accidents

V (two) features in the campus accident

The basic characteristics of campus accidents are mainly: 

Time u 1 accidents should be "during the period of school".

Diversity ü 2 directly hurt the body. 

U 3 schools, kindergartens and other educational institutions in violation of the education, management, protection of minors obligations.

U 4 infringement objectively has caused human casualties consequences.

The properties of two, the campus accident liability

1 the responsibility of guardianship and said.

2 fault liability.

The imputation principles of liability, the campus three

Four, about the identification of fault "

(a) the judicial cognizance standard "

In judicial practice, the victim should be the burden of proof for the school or other damage caused by fault. Fault is the subjective aspects of human behavior intention or negligence, judging standards needed to be determined objectively. Judging the fault, first of all, we should determine whether the school should bear the duty of care and duty of the degree (such as the general duty of care or special attention obligation); secondly, if the school bears the obligation, to judge whether the school in breach of the duty of care. At the same time, the duty of care is changing with the development and changes in social environment changes, therefore, in specific cases inevitably requires judges the discretion, considering various factors to inspect schools and other institutions are in breach of the duty of care. Some people think can from the following several aspects to ascertain whether the school violated its duty of care:

At first, all kinds of educational facilities of the school is in compliance with safety requirements, for all the problems are removed in time; "

U second, school has developed safety rules and regulations reasonable, clear, and the students' ideological education, legal education and safety education; "

U third, school to avoid personal injury compensation events to, whether you have taken the necessary preventive measures; "

U fourth, students casualty accident, the school shall have the obligation to take timely measures to rescue the injured students; "

U fifth, whether the school students behavior intentionally to hurt or damage the dignity of students.

(two)  objective standard types of administrative regulations

Five, the third infringement liability "

If the minor students injury is caused by the third person, how to determine the liability for damages of human behavior? Schools, kindergartens and other educational institutions should also be liable for damages? Interpretation (2003) in the second paragraph 20, seventh for this problem is clear: "third people suffered minor personal tort causes damage, it shall bear the liability for compensation. Schools, kindergartens and other educational institutions have a fault, it shall bear the corresponding compensation liability." By this paragraph can be seen: 

1 third person tort caused suffered minor personal injury, from the third person shall bear the responsibility for compensation.

2 schools, kindergartens and other educational institutions in the supplementary liability in case of infringement of third people.

The fifteenth chapter Employer's liability and legal responsibility

The first section Employer's liability in the

One, overview of the liability of employer

(a) the concept of liability of employer

Employer's liability, is refers to the employer engaged in employment activities causes damage to others shall bear the responsibility for compensation. 

(two) the characteristics of employer liability

Employer's liability is a kind of vicarious liability, vicarious liability is a special tort liability (for the damage caused by the responsibility of others, also known as "quasi tort liability") a form, has the following main features: e.g.

A specific relationship between v1. vicarious liability and the direct perpetrator (such as employment, membership, care).

V2. alternative responsibility in a specific position.

V3. Harmer in certain conditions, including engaged in employment activities, perform their duties.

The legal consequences of v4. of employer liability is the damage caused by the separation and responsible person.

Elements two, employer liability and liability principle "

(a) the employer liability "

Employment relationship between the employer and employee, u 1. 

U 2 damage caused to others behavior must be employees engaged in employment act.

U 3 employee behavior must be shall assume the tort liability act.

(two) the principle of imputation of liability

The imputation principle of employer liability, there are three kinds of legislative style: the presumption of fault liability, no fault liability, fault presumption and equitable liability combination: 

U 1 a presumption of fault liability. 

U 2 liability without fault.

U 3 fault presumption and equitable liability combination.

(a) the main academic point of view there

L1. employs people say. The subjective meaning of employer as the standard. Engaged in employment activities range should be in accordance with the instructions of the employer to determine. Employee employer clear instructions to handle things, is engaged in employment activities range, any act that goes beyond the employer indicating range are not engaged in employment activities. 

L2. servant subjective theory. The subjective desire of the employee's standard, engaged in employment activities should be in accordance with the instructions of the employer to decide, but if the servant to the employer's interests, or instructions is not specific, clear in the employer, or because of changes to the other processing time, should also be considered is engaged in employment activities. 

L3. objective. The outward manifestation of employment activity as the standard, if the behavior in the objective performance management and in accordance with the employer's instruction event requirements consistent, it should be considered to belong to the scope of employment activity, or does not belong to the scope of employment. 

(two) the attitude of judicial interpretation

Interpretation (2003) No. 20 ninth provisions of the second paragraph: "to engage in employment activities", refers to the authorization or instructions of the employer within the scope of production and business activities or other service activities. The employee's behavior beyond the authorized scope, but the form of the performance of their duties or internal relations and to perform their duties, shall be determined as "employment". Therefore, the behaviour of the employees are engaged in employment activities, should be judged from the two aspects of objective nature subjective meaning and behavior of people. Generally speaking, the employee that is subjectively engaged in employment activities, but objectively and not contrary to the reason, we can conclude the behavior is engaged in employment activities. "Engaged in employment activities" usually includes: (1) the employer employee according to instructions in their own areas of competence; (2) in order to complete the affairs within the terms of reference, auxiliary act for; (3) the rational behavior in order to employer's interest (and possibly beyond the authority behavior), such action shall have rationality objectively. The third kinds of behavior into the employees engaged in employment activities, mainly in order to protect the interests of victims, making it relatively easy to get compensation.

(a) the employer vicarious liability "

The employer liability has three elements, and employee tort exists only general negligence or slight negligence, the employer is caused by infringement of its employees engaged in employment activities in the process of liability for damage. This is a kind of vicarious liability, damage caused by the detachment and responsible person, the obligation of reparation is vicarious liability people (employers) rather than the direct perpetrators (employees). Let in the dominant position of the employer vicarious liability, the employer has a greater risk of interest at the same time to assume greater range in obtaining higher profits or; help to prevent the occurrence of damage of the employer to take measures, regular education, training, assessment and supervision of its employees, or liability insurance. 

(two) the employee and the employer's liability in the

If working after drinking, brutal construction, illegal operation of such phenomena often appear the employees engaged in employment activities in employees, gross negligence or intentional damage cases still let the employer liability alone, it may fall into another unfair -- on the employer unfair. Therefore, law interpretation (2003) No. 20 ninth stipulation, employees due to gross negligence or intentional damage, employers liable for compensation shall and responsibility; and, employers assume joint responsibility for compensation of employees after recovery. In this case, the employer and the employee's responsibility, as a common tort responsibility. Of course, if the damages caused by employee engaged in employment activities behavior with intentional or gross negligence, is the key to decide whether the employee shall bear joint and several liability. 

Five, the hirer and the Contractor's liability for tort "

(a) the hirer in principle wrong contractor damage responsibility "

(two) exceptions and conditions, the hirer responsible

The hirer undertakes the responsibility to have the following elements: 

V1. should be the hirer has set, instruction or selection of negligence "

V2. should be tort occurred during the execution of contract issues in the process of the

V3. shall be the Contractor's acts constitute infringement responsibility "

V4. third or the Contractor's actual loss "

The second sectionLegal person (other organization) of the tort liability "

A legal person (other organization), the tort liability of the

(a) the concept of the legal liability for tort

Tort liability of legal person, refers to the legal representative of the legal person or other organization, the people responsible for the damages caused by the people as well as the staff on duty, the legal person or other organization shall bear civil liability. Unlike the employer's liability, the judicial interpretation provides no legal person (other organization) of the legal representative, the person in charge and the staff in the intentional or gross negligence cases and legal person (other organization) shall bear joint and several liability. 

(two) the legal elements of the tort liability "

1 damage to people's behavior is the performance of duties.

2 in carrying out their duties behavior caused the damage.

3 in carrying out their duties behavior and the damage consequence has a causal relationship.

Two, the legal responsibility ability "

(a) the nature of the legal person

The essence of legal doctrines have fiction theory, denied that, say three theories: (1) the fiction theory. (2) deny that. (3) say.

(two) the legal responsibility ability "

1 concepts and theories "

The capacity for civil liability of legal person refers to the civil subject according to bear civil liability with independent legal status or the legal qualification. Civil legal person without capacity for civil liability, because of different views on the nature of the legal person and have different theory.

(1) say.

(2) negative.

2 China's civil law clearly defined legal person has the capacity for civil liability "

Three, "duty" criteria "

The legal representative of the legal person or other organization, the people responsible for the people as well as the staff of the infringement behavior whether to belong to the execution of his duty behavior, is a decisive factor in whether a corporate responsibility. To determine whether the performance of duties, there are three kinds of theories.

U1. legal subjective theory.

U2. corporate staff subjective theory.

U3. objective.

Shown that generally, the following actions are not performing their duties:

• (1) beyond the call of duty behavior.

• (2) unauthorized act of commission.

• (3) in violation of the ban.

• (4) borrow opportunity act.

The sixteenth chapter Product liability

The first section Overview of the

An outline of product liability, product and the

(a) the concept of the product

(two) the concept of product liability

Product liability, is refers to because of defective products causing property, personal damage, the civil liability of the manufacturer, seller. The concept of product liability has broad and narrow understanding of the two, in broad sense includes both products are the civil liability for defects cause damage should bear (tort), including product quality failure caused by the improper fulfillment of contract liability (liability for breach of contract); narrow sense refers only to the tort liability. If no special instructions in this chapter, the author only study the product liability from the narrow angle. 

(three) the nature of the product liability

Two, the main responsibility of product liability and the claimant "

(a) the main responsibility "

1  foreign legislation on the main responsibility of the

2  China's laws on the subject of liability provisions. 

• (1) direct responsibility and indirect responsibility main body. 

• (2) product producers and sellers are the direct responsibility. 

• (3) the concept and scope of the producers. 

• (4) the concept and scope of sellers. 

(two) the claimant "

The concept of product liability claim the U 1  product liability claim for compensation of damages, is when the personal or property damage caused by defective products, the subject has the right to claim for compensation. 

U 2  purchase contract parties "

U 3  the direct victims of the defective products

U 4  the victim's close relatives "

In section second, the product liability and responsibility "

A defect, e.g.

(a)  defective product concept

(two) the defect classification

U 1 design flaw in the

U 2 manufacturing defects "

U 3 defects in marketing

Two, damage to the

The damage is refers to the use of defective products as a leading cause of death, personal injury and property loss and other serious losses. The damage is one of the essential elements of product liability. The product liability directive enumerates several damage: (1) causing death; (2) personal injury; (3) loss of property; (4) non substance related impairment (spiritual damage). For moral damage, the product liability directive not to direct regulation, but the relevant provisions of recognition of members.

Three, the causal relationship between the

In products liability cases, causality is that defects in the product as the inherent hazards, the relationship between implementation and the victims of the inherent risk of damage, the former reason, the latter results. The causal relationship is one of the constituent elements of tort liability in the case of products. The causal relationship between the product liability, some common causal relationships with other tort. These features are: causality is the order of the time of the objective truth; in fact; the reason is a necessary condition for the results; can be used as a supplement to test the substantive elements. But causality in product liability exists because of a fruit, a result of more fruit, a fruit and multiple causes multiple effects and other forms of. But the causal relationship between the product liability has its particularity. This particularity is mainly reflected in: (1) subject of proof and degree of proof; (2) the object of proof; (3) proof method. 

The third section Imputation principle, exemption and limitation of action "

The imputation principle of product liability, a

Our product liability legislation, take the product liability imputation principle of two yuan, which apply the principle of liability without fault, too

Apply the principle of fault liability, imputation principle but with the principle of no fault liability as the leading. For the different responsibility subjects assume different

Liability types, using multiple imputation methods. 

(a) apply the no fault liability principle

(two) for the fault liability principle

Two, the exemption conditions "

(a) the conditions of exemption product liability "

(two) several exemption conditions "

U 1 The product has not been put in circulation in the

Defects caused by damage to u 2  product was put in circulation did not exist in the

U 3  the development level of science and technology "

U 4  other exemption conditions "

(three) apply the exemption conditions

Our product quality law stipulates that the manufacturer's responsibility, also stipulates that the seller's responsibility, and the legislative intention difference (surface directly responsible responsibility) and the ultimate responsibility (the substantive responsibility), is therefore exemption conditions have some features. 

The main application of the 1 students

Ø responsibility 2  applicable type "

Three, special provisions on product liability litigation prescription "

The seventeenth chapter Liability caused by environmental pollution

The first section Overview of the

One, the environment and environmental pollution "

Two, China's environmental protection legislation "

The current environmental protection legal system mainly includes the following parts: 

(a) the constitution "

(two) Protect environment laws and regulations "

(three) the protection and rational utilization of natural resources laws and regulations "

(four) the relevant provisions in other laws

The second section Liability caused by environmental pollution elements "

One, the pollution of the environment behavior "

Two, damage to the

Damage refers to the victim by contact or exposure to contaminated environment, and by personal injury, death and property loss and other consequences. The damage caused by the pollution of the environment, the damage is caused by the same and other common tort damages, also has its own particularity, performance for the latent and extensive. 

(a) the latent damage

(two) extensive the damage

Three, the causal relationship between the

Due to the complexity of environmental pollution, behavior of the progressive and multifactorial, latent and widespread and damage, the proof of causation compared to ordinary tort case more complex. Therefore, in addition to the traditional method and by means of environmental monitoring, analysis, testing, technical evaluation and other means, some domestic and foreign scholars have put forward some new proof method, to help prove causality damages caused by environmental pollution in difficulty, the proof methods are causality presumption of legal knowledge based on the

Theory method. 

V (a) probability causal relationship "

V (two) method to prove the social epidemiology "

V (three) indirect disproof method "

The third section imputation principle and conditions of exemption "

One, the pollution of the environment caused by the imputation principle "of the damage civil liability

Two, the exemption conditions "

(a) the irresistible natural disasters, e.g.

(two) other exemption conditions "

1  act of war.

2  third fault.

3  the fault of the victim.

The fourth sectionThe pollution of the environment caused by the bear and the limitation of action in civil liability for damage

One, the pollution of the environment civil liability for damages caused by the bear "

(a) methods of bearing civil liability "

(two) the claimant "

Two, special provisions concerning limitation of action

China's "environmental protection law" forty-second stipulates: "the limitation period for prosecution because of pollution damage to the environment for three years, from the party knows or ought to know the computation by the pollution damage." Environmental pollution damage as special tort, the period of limitation of the applicable legal provisions for special. Therefore, should be in accordance with the "general principles of civil law" in article 141st, for "environmental protection law" article forty-second does not apply to "the general principles of the civil law" 135th and 136th ", but the general principles of civil law" 137th, 138, 139, 140 shall also apply.



The eighteenth chapter Animal damage



One, "animal" concept "

A "general principles of civil law" 127th called "animal", should also have the following conditions: 

U (1) it for certain people all or possession, for specific people feeding or management; "

U (2) feeding or manager has control of the appropriate level of animal

U (3) the animal according to its own characteristics, it is possible to other people's personal or property damage; "

U (4) the animal for the livestock, poultry, pet or domesticated animals, reptiles animal. 

The imputation principle two, animal damage responsibility caused by

Elements three, animal damage responsibility caused by

1, damage to the

2, the causal relationship

The liability for compensation four, feeding or administrator

1 students, the obligation of reparation "

2 students, the general principles of the civil law, compensation

Ø 3, illegal possession of the liability of people

The damage caused by the 4 students, rearing animal escape or reply to wild state obligation of compensation "

The liability to pay compensation 5 students, abandoned, lost, escape personal injury by the animal

Battle damage between 6 students, medicinal powder raise animal and responsibility "

Ø 7, animal husbandry as the compensation liability of tool condition



Five, the exemption conditions

1, "general principles of civil law" provisions of article 127th of the two statutory exemption conditions: the victim's fault; the third party "

2, agreed exemption "

3, about the irresistible force or "incident" "

China's "general principles of civil law" the 107th stipulation: "due to force majeure is unable to perform the contract or causes any harm to another person, he shall not bear civil liability, unless the law provides otherwise." This provision is applicable to animal damage? On the one hand, from the "general principles of civil law" on the logic structure, it is suitable for feeding the animal to cause damage, because "the general principles of the civil law" 127th article did not make special provisions; on the other hand, the scholars of our country are not listed it as the exemption conditions. The author thinks, should consider two cases. 

(a)  necessary animal is maintained animal breeder, manager of business or livelihood

(two) animal is not maintained animal breeder, management of business or living "

The nineteenth chapter Liability caused by building etc.



The concept of damage to people caused by a, buildings and imputation principle "

Person responsible for damage caused by two, building etc. "

U (a) "general principles of civil law" provisions of article 126th of the "manager", "

U (two) the person in possession of the other

Three, the components of the liability of the

U (a) buildings achieve internal dangerous "

U (two) fault "

U (three) damages and the causation "

Four, defense "

U (a) about the obligation of reparation "no fault" "

U (two) the victim's fault "

U (three) about the irresistible force "

U (four) the third party "

U (five) no fault of the parties dealing with the consequences of the damage

Five, roads, bridges, trees liability

Overview of the damage by 1, road, bridge

Liability caused by 2, road, bridge bear "

The damage caused by the 3 state-owned and public facilities, the problem of responsibility "

The damage caused by the so-called state administrative damage public facilities compensation, refers to the state administrative organs, responsible for setting management duties, public facilities because of the establishment of state-owned, mismanagement, and causes damage to others, the administrative tort liability.

The damage caused by the 4, the responsibility of the trees

The third series Form of civil liability for tort

The twenty chapter in tort civil liability form in

The first section Overview of the tort liability form

 a concept, tort liability form

The civil liability of infringement, is the obligation of reparation shall bear the legal consequences of unfavorable property or personal aspects of the. Specific categories of such adverse legal consequences and applicable scope, method of general in advance by the law to make specific provisions.

Tort liability form, refers to the relationship between tort law, according to the requirement of different kinds of tort, tort liability when the form distribution in different parties. The basic form of the basic rules of different parties in infringement responsibility accountability.  

In two, the direct responsibility and indirect responsibility

1, the direct responsibility: basic behavior to assume direct responsibility is the general tort liability for fault principle.

2, the vicarious liability: undertaking the basic behavior of vicarious liability is a special tort; reverse the burden of proof.

Three, unilateral liability and responsibilities of both parties

1, unilateral liability: the offender and victim liability responsibility two.

2, both sides responsibility: a contributory negligence and fair responsibility two. Basis of contributory negligence is contributory negligence, contributory negligence is a fault with the legal consequences; fair responsibility is damaging both parties have no fault.

V (1): refers to a fault caused by tort damages or expand the results, the victim is at fault, form tort has cause the behavior and behavior of people the victim's behavior on the damage, his legal consequence is contributory negligence.

V features: the victim to the occurrence or expansion of damage fault; mixed fact causes damage; damage to the party.

V (2): comparative negligence on the occurrence of damage or expanded, the victim is also at fault, the court may of its powers, according to certain standards to reduce or exempt the liability of perpetrators, a system to fair and reasonable allocation of the damage.

The use of the premise of V contributory negligence on the occurrence of damage or expanded, the victim also has the fault, namely the contributory negligence, contributory negligence is a fault with the legal consequences, therefore the constitutive factors of comparative negligence is the first victim is also at fault. Second is the damage must be the result of identity.

V contributory negligence and causation interrupt similar without the same. In the no fault liability or strict liability if the victim has gross negligence, and the perpetrator is no fault or only slight negligence, application of contributory negligence. In the special tort liability without fault can be applied in the premise of fault offset, taking into account the no fault liability for the Department of legislation to protect the interests of the victims for the purpose of the just distribution, so the application of negligence offset should be limited, in order to avoid legal protection and the interests of the victims of the conflict.

Including the effect of V contributory negligence: the perpetrator can so that the corresponding reduction or removal of civil liability; the court that the parties are not to be in accordance with the terms of reference, civil liability waiver perpetrator. Contributory negligence is not the essence of the elements of establishment of tort liability, but the amount of damages means, it is the principles of fairness and appropriateness.

V (two) negligence elements

Behavior of V1. The victim and the offender is the cause of damage, but also damage the result of identity.

V2. The occurrence of the damage is at fault.

V (three) application of negligence offset

V That our civil law theory, comparative negligence is only applicable to the fault liability of the occasion, the no fault liability does not apply contributory negligence.

V (1) of the victim to the same occurrence or expansion of the damage of intentional, negligence, can be reduced or relieved of liability obligations;

V (2) damage to people caused by the victim intentionally or negligently, the victim only ordinary negligence liability obligations, people do not reduce;

V (3) in the obligor shall bear the liability without fault of the occasion, the victim has gross negligence, the liability for compensation can reduce the obligation to compensate people.

V four, individual responsibility and mutual responsibility

V1, individual responsibility: is the implementation of tort responsibility form. That alone as the perpetrators of infringement, which shall bear the liability for damages liability forms.

V2, the common responsibility: two more common implementation of the tort liability form. Index for the offender commits a tort, and bear the compensation liability damage to its form of liability.

V (1) joint and several liability in the common responsibility;

V (2) shared responsibility in the responsibility;

V (3) supplementary liability in the common responsibility.

V3, unreal joint and several liability: most of the debtors causes based on different incidental to the same creditor owes to the subject of a number of obligations in the same performance, the negative all obligations, and because of the debtor's discharge and make all debts are attributable to the elimination of the form of liability.

V features:

V (1) most of the debtors to creditors based on different reasons have different debt.

V (2) number of debt came together, accidental factor here is the primary emphasis is on the implementation of the tort on the various injuring personnel before without any collusion, the offender is tort respectively based on the will and implemented separately.

V (3) payment, a number of the debtor is basically the same, and the liquidation of the debt ratio, regardless of amount, each debtor shall bear all the payment obligations and compensation for all the perpetrators of the offender and the victim of the debt to be destroyed, sharing in injures the person within existing share of responsibility.

V (4) no real joint debt has the final responsibility. The final responsible person, refers to a number of responsibility should be ultimately responsible person

The fourth series Compensation for damage

The twenty-first chapter The compensation for the

The first section The principle of damages

V, the principle of full compensation: personal, property damage compensate how many

V note: distinguish all compensation and full compensation; should be based on the actual damage as the standard; the distinction between direct loss and indirect loss; should include the necessary cost of power gain

V two, property compensation principle

V three, profit and loss offset principle: refers to the victim has interests in losses at the same time, it should be the interest deducted from the amount of compensation due in. The property nature of the victim benefit is confined to economic interests or money can calculate interest, not including emotional, spiritual interests. For the micro economic interests, general need not use the form of profit and loss balance.



Four, the principle of fault offset: refers to the victim is at fault for damage, should be based on the fault size reduced to remove the perpetrators or the person who is liable to compensate for the damages. The provisions of rule of contributory negligence in tort law, in fact is to carry out the principle of fault liability: the offender is led to the incorrect behavior damage to their own responsibility; expand or damage the victim also leads to his fault damage to bear the consequences.

V five, the principle of equity



The second section Tort liability form

V, stop the infringement

V The cessation of the infringement by the infringer to stop the ongoing tort liability form.

V two, compensation for damage

V Damages is to compensate the victim was against the infringer damage the legitimate rights and interests of the form of liability for. Damages include property damage and moral damage compensation.

V three, eliminate the nuisance

V To eliminate the nuisance refers to when the behavior to the exercise of the rights of others and cause harm to human behavior, to eliminate the nuisance, make the rights of others to the normal exercise and Realization of responsibility.

V four, eliminating the danger

V Eliminate risk refers to when the behavior or object in its management or animal, risk causes damage to others, the threat to people have the right to require it to take measures, elimination of danger.

V five, the return of property

V When the property is the illegal possession, the right person may request the return of property, illegal possession.

V six, restitution

V When the property was damaged but still repair, the right person may request the infringer restitution.

V seven, eliminate the influence, restore the reputation

V This form of liability is mainly applicable to the spirit of personality rights, such as right of name, right of reputation, the right of portrait, right of honor, dignity right and other rights are violated.

V eight, make an apology

V Apology is made to the victims, perpetrators apologize said admit responsibility.

V The above eight kinds of forms of liability, in addition to compensation and apology, not the tortfeasor's fault as a necessary condition. At the same time, the form of liability may be applied singly, the nature of conflicts can also be applied in combination

The third section Property damage compensation

V Compensation for damage is the injuring party to be in charge of by him a certain behavior or property damage incident caused to others and personal injury law, to own property to the victims for payment. Damages of tort law is the most widely used, the most frequent is the most important civil liabilities.

V, tort compensation principle

V Principle of compensation for the tort law of our country is to fill damage principle, namely loss of how much how much compensation. This is determined by the civil law principle of equality. The legal status of civil subject in civil field is equal, equal status of tort fact can not be changed by the parties, the parties can not equal each other. However, in some special cases. It involves the punitive compensation and the compensation amount limitation.

V two, property damage compensation

V (a) property damage caused by property rights infringement compensation

V Infringement of property rights refers to the appropriation of property, damage to the property of others or to exercise their property rights against the actions of others. Infringement of property rights cause property loss to others, shall compensate for the losses.

V1  existing property damage compensation. The existing property loss to reduce the real property, such as property destroyed property is damaged, repair cost paid by the.

V2 can get profit loss compensation. Acquirable interest loss refers to the loss of future interests. Only when the damage occurs has realistic conditions to realize, only because of damage to the loss of interest, can be used as available interests claim for compensation.

V The main form of acquirable interest losses are:

V (1) loss of profits for business.

V (2) yield loss.

V (two) property damage caused by the infringement of personal right of compensation

V "General principles of civil law" 119th stipulates: "a citizen's person causing physical injury, shall compensate for the medical expenses, lost income, reduce disability allowance for daily life; cause of death, and shall pay the funeral expenses, the dependents of the necessary living expenses and other expenses." This is the basic provisions of civil law on personal injury compensation.

V "Interpretation of personal injury compensation" summary "general principles of civil law" the implementation of many years of experience in judicial practice, made specific provisions in detail on the scope of compensation for personal injury.

The scope of compensation of injury of V1

V2 induced the crippling property compensation

V3  deaths caused by the property compensation

The fourth section Compensation for mental damage

Overview of V A, the spirit damage

V (a) the concept of mental damage

V The spirit damage equivalent to non property of countries of continental law system in the traditional civil law damage. Non property damage is not property directly or not has a property worth of damage.

V A range of non property damage:

V The general said that all forms of damage to property damage other than the all belong to the non property damage, including physical damage, mental damage and beyond the physiological, psychological range of abstract spiritual damages to the interests of the damage, not to whether civil subjects have the mental feeling ability, so the legal person and other social organization will damage occurred in the non property damage also problems.

V said that the narrow sense, non property damage is only natural person personality interests lead to mental pain and physical pain, and in general social concept called mental damage. The legal person and other social organization is not a natural person's physiology and the psychological feeling ability, no spiritual pain at all, therefore, do not exist the problem of spiritual damage.

V The Supreme People's Court on the judicial interpretation in narrow sense.

V (two) characteristics of spiritual damage

V compared with the property damage, mental damage has the following characteristics:

V1 damage law is the spiritual interest.

V2 damage can not be calculated with the money itself.

V (three) to establish the system of compensation for spiritual damages significance

V To strengthen the comprehensive protection to the natural person's rights, is conducive to the establishment of the personal rights of others, respect the dignity of morality in the whole society advocate and, to promote the social civilization and progress, for China's such a lack of respect for human rights, the traditional state, this point has special significance.

V two, spiritual damage compensation liability

V 1  behavior law.

V 2  the victim of mental harm.

A causal relationship between the spirit damage V 3  tort and victims.

V 4  about the actor's fault.

The application range of the V three, the spirit damage compensate

V The scope of compensation for spiritual damages, legal doctrine and the discretion of two. Statutory legislation stipulates, non property damage to the legal provisions are limited, may request the monetary compensation, most civil law countries, legislation and statutory. Scope of discretion in legislation of compensation for mental damage without restrictions in particular, but the judges the value orientation and the specific situation of the case discretion according to general social concept, law.

V Our approach is a legal doctrine.

V (a) infringement of personality rights

V Infringement of personality rights of personality interests others causing damage, the victim has the right to claim compensation for mental damage. Include.

V 1  against the substantial right of personality

V 2  spiritual personality right

V 3  against the general personality right

V (two) of privacy or other interests of personality

V (three) against specific identity rights

V (four) against the personality interests

V (five) special commemorative items with personality symbolism damage

To determine the amount of compensation for mental damage, V four

V To determine the amount of compensation for spiritual damages, the countries of continental legal system have the fixed compensation, compensation standard and amount of compensation, the countries of Anglo American law system usually consists of the judge's discretion.

V The amount of compensation for mental injury according to the following factors:

The degree of v 1  the infringer's fault.

Means of infringement, V 2  occasions, behavior specific circumstances.

The V 3  torts.

Profit of V 4  tortfeasor.

V 5  violator's economy.

The living standard of the average V of 6  by the seat of the court.

V [] review and reflection

V1  tort damages and the return of unjust enrichment difference.

V2. What is the spirit damage? Infringement and infringement of personality rights of mental damage compensation elements differ?

V3 common fault and distinguish fault.

A court in v4. According to the joint dangerous act ordered with a building two layer above the building tenants for throwing out of the ashtray crushing head passer-by A shall assume joint and several liability. The case was create a great sensation, mixed. Do you think that a court is correct? Why?

The fifth series of tort law case

V1, the traffic accident the posthumous claim for alimony dispute

V2, a traffic accident after the death of the perpetrators by their parents in the heritage range shall bear the responsibility for compensation

V3, caused by a traffic accident to repair damaged vehicles during the outage cost of damage compensation dispute (the car is building cargo transport vehicles. The expected loss of benefits.)

The deceased portrait using V4, hospital advertising infringement disputes on the bus (that tort and infringement subject)

V5, upstairs decoration Housing stoned neighbors, owners and decoration companies are jointly and severally liable

V6, paintings by embezzlement case (request the return of pay margin, forcing it to return the painting. Because the original does not exist can not identify its value)

V7, the thief and informants "private agreement" null and void due to illegal (the confiscation of illegal income 3000 yuan, and each fined 500 yuan)

V8, the publication of false information against the claims (Mao Amin concert ticket loss case)

V9, cable television commercials behavior and user "normal viewing rights" dispute case (70 minute series, a 30 minute ad, violated the right of what the user? The absolute right of existence of the "normal viewing rights"? Whether the default?)

On the essence of "interests damage"

V "interests" is actually a subjective method, the said requirements when there is no and size in determining the damage, factors to consider all aspects of the final formation damage victim. Victims of the overall damage can only apply to "interests".

V "interests": damage equal to interest; damage into a calculation of the size, position of damage is not independent; "interests" as a purely subjective theory, the requirements of various factors should be considered the property changes.

Abuse of V "interests": first, according to the "interest" to measure the status of the property, in many cases not economic operator. (such as factories discharge sewage to adjacent to the housing prices fall, after the prosecution, asked the factory to stop sewage, housing prices rose to the original price; to take no fact chair; narrow bread selling price: Although the bread flour processing private buckle, but the bakery bread every day can be sold at the price; the victim to buy film tickets were stolen, even if not stolen he couldn't see, show after the request compensation)

V second, will damage as calculated on the size, will make the assessment of the cost is too high. (such as coal mine contractor partnership accounts confusion, the court commissioned the accounting firm to audit the partnership accounts)

V again, "interests" of the so-called "subjective interests is always greater than the objective value" is not the absolute truth. In general, subjective benefit is larger than the objective value. (such as loss of bottom photos, old things for all hard etc.) (like three girls from a car accident, "life with different price" case: victims of the rural girl's parents claim is the subjective interest standard. The Supreme People's court established standards of objective interest compensation is the difference between urban and rural areas based on realistic consideration, has led to a significant loss of fairness and justice of the consequences.) But in exceptional circumstances, subjective interests may be smaller than the objective value. (of goods sold, before delivery of transfer speculation after prices rose)

V finally, "interests" it is difficult to cover all the damages. First, profit and loss balance: refers to the damage after the accident, if the right person is any damage, but the same causes damage based on the benefit, is liable for compensation in compensation for the loss suffered by the rights owner, shall be deducted from the right people have interests in the amount of compensation. (if not for management of labor remuneration) (the other as a student collected 5000 stamps, neighbors the fire was on fire. After a lot of good people to its more than 20000 zhang. The students can claim damages?)

V second, repair connection: refers to the harm although attributable to the behavior of matter, but even without this tort, damage would occur due to other reasons. Two a tort action will cause the same damage, only one has caused damage, resulting in second cannot produce effect. Third, third damage (such as a cash to buy goods, the seller the goods to please B C, B the goods delivered to the carrier transport, all the stolen on the way. The "benefit" the buyer a is not the owner, you cannot claim damages)

On the essence of "damage constitutive theory"

V because of "interest" has many defects, "said emerge as the times require.".

V said that real damage: damage often accompanied by physical deprivation, damage or injury incurred. This "real damage" independent status displays in: first, reflect the restitution theory. Restitution should take precedence over the money compensation, otherwise the real damage cannot by restitution of damages to achieve. Second, profit and loss balance requirements. If the right to compensation for this some interest, it will be possible to the fact of the original interest deduction or the original claim it to be transferred.

V direct damage by the said: that the damage is in the transaction with money or goods for sale infringement, direct damage is generated because of infringement act. And this directly damage at any time should be filled. As for the direct damage of damage, should be used to measure the interests. (such as Shenyang the Imperial Palace museum outside the horse down, pile by the Shenyang Guangdong catering company chauffeur driven Mercedes claims 27000000 yuan. Experts under the lowest value in the post 25000000 yuan)

V law protection directly and said: the damage and legal nature protection against direct objects. If the purpose of law is to protect an object without damage, due to illegal infringement to the protected object caused no interest, is the first shall fill the damage. The damage of course should be assessed objectively, and constitute the minimum amount of compensation standard for damages, which in any case should be filled.

The theoretical basis and core V ".". First, the "constitution" was established in two on the basis of the theory: first, in order to compensate for the rights of property condition as the starting point; secondly, the protection of the overall property is placed in a secondary status. Second, "said the theory core": when an object is damaged, according to restore Yu Jinqian priority compensation principle, the direct damage shall be assessed objectively and in any case should be filled, the damage is the minimum amount of damage compensation. Were it not for a particular object damaged damaged but the overall property, does not apply this principle, at this time, what damage the presence and size, have the difference in the compensation for the rights of property in the presence and size to be determined. This theory solely for the purpose of solving repair causation.

The characteristics and defects of V "."

V the language and content of each different and emphasis, system is not complete

V "material injury" have the independence in the concept, with "the whole property damage" two elements, leading to a split damage concept.

The V difference is bigger than the external damage, may demand compensation

V "free choice" to be recognized

Conclusion V

V (1) "which said" do not see more in the cases and theories in our country. (German tourists buy Xu Beihong works at a low price fakes, undeclared and double return)

V (2) "the objective damage said" that does not match the minimum compensation with the facts

V (3) in the civil law of our country in the history of the "interests" principle

V11, the bank refused to return the silver dollar, RMB and infringement of Title Case old version

V12, the seller v. manufacturer with drinks with foreign influence its business damages case (the division standard of how to determine the direct damage and indirect damage? The existing property loss can be reduced and the interests of the. The principle can get profit loss cannot be used in chicken and egg, should be a reasonable expectation) (such as the village committee to perform action village [livestock to eat green, not killed for the breeding sows killed himself] for [with] compensation case 13 pigs. Sow loss is "damage", a damage is "the loss of interests". On the "lost profits" China's judicial practice is certainly the compensation.)

Determination of the "lost profits"

V "lost profits" is essentially a kind of expectation interest, the parties have foreseen or foresee, can look forward to and must should be of interest.

V on the other object is damage to recover before, whether all or occupy people cannot use the matter, what is the use of possibility of such material deprivation damage? (such as to buy tickets to the giant panda, was told that pandas injured; heating device is defective, influence use holiday villa; sea travel, the shipper fails to put the clothes luggage to the results because of the cold weather, but not being performed using possibility; car damaged deprived.)

V I think because of the possibility of using the obtained shall be a property to pay, so, be deprived illegally in the circumstances, it should be regarded as a kind of property damage.

V has "lost profits", can be divided into positive and negative damages to the interests of damage to the interests of.

V "positive interest" refers to suffer for the creditor debtor does not fulfill the debt not benefit.

V "negative interest" means the legal act is invalid or revocable and relative person trust it as effective or cannot be withdrawn, due to invalid or revoked suffered no interest. As for the reliance interest in damage of contracting negligence.

V13, TV and refrigerator made adult explosion caused damage

V14, the director was killed [lead to crew paralyzed] without the driver for driving the actress (the case involved "reflective damage")

How to understand the reflective damage and third damage

V "reflective damage" refers to the third damaged the parties to a contract or tort direct victim result indirectly implicated in the injury suffered. Features: (1) the first victims and second cis position the victim damage; (2) second cis position the damage suffered by the victim is caused by the first order of the damage to the victim. The second cis position of damage is through the first damage "reflection" and the formation of.

V addition, "range reflective damage" and more than second cis position of the victim, there may be third, fourth, fifth, a victim. As for the former CIS victim relationship among the CIS and post, can be the debtor creditor relationship, also can be the legal relationship between business, also may be the relationship between the public law.

V "damage" third people ": Reflection and damage" similar but not the same. In the "third person harm", also has first and second cis position of the victim. But the first victim wasn't damaged in most occasions, damage occurred only in second place on the victim. Features: (1) the first victim is not actual damage; (2) second cis position the damage suffered by the victim is original damage caused by the accident damage; (3) "the scope of third party damage" principles only second cis position of the victim. Connecting the first and second cis position of victim, limited to property relations, identity relation is not enough to cause third people to damages. (such as false reports of a newspaper while pointing to Mao Amin, but resulted in third people to perform the company claims of infringement.)

V15, the website was hacked by the legal gaps, hackers symbolic sentenced compensate 1 yuan ("symbolic compensation" refers to the right to compensation claims its damage in a tiny fraction of damage. Action a yuan of money: because the object of litigation is small, the judge is easier to quasi their request; win also enough to expect purpose; compensation represents justice belongs.) ("micro amount of damage" refers to the concept of small and are usually identified as frequent damage, i.e. the right to compensation from small damage. If the proper court, will cause the great waste of judicial resources. As sue Huang Hong [book] late, claims 888.88 yuan Beijing "King Yang Lirong." [the court the same day he was late for half an hour, by withdrawing treatment. Then he will the bus company to court, claims 444 yuan]'s story: six years played more than 50 lawsuit, he said: "I don't approve of me tell who, I am now a day three things, eat, sleep, that." He heads the claim amount is very small, but the cost of litigation has nearly 2 yuan.)

V16, the young "Internet Addiction Syndrome" caused the tragedy, whether developers illegal behavior? By what standards?

V17, Chengdu man killed by robbers do boldly what is righteous acquitted case (independent judgment standard responsibility is tort capability)

V18, tube misconduct leading to object or animal -- indirect behavior: ashtray famous crash casualties caused by the case

V19, relatives because of high school students from private schools] death compensation case school [v.

V20, the post office without meteorological station allowed to spread weather infringement case

V21, a chemistry teacher teacher [] did not inform obligation to students' injury tort case

V22, don't clean up stumps, wire rod on road casualties caused by the case (not law as the breach of duty)

V23, the patient lost death case (not as a contract breach of duty)

V24, tourists in travel sudden illness, travel agency collateral obligation

V25, take irresponsible children away, caused the lost case (compulsory students violating previous behavior are not as)

V26, knowing that her husband take pesticide Dutch act not bailout (members of the community to help each other obligations in violation of survival is not as) (not as intentional homicide obligations)

Illegal:

V27 documentary, fictional history fact defamation case

V28, violations of the right to land contractual management group of villagers

V29, China public order and good customs first case -- Luzhou bequest dispute (Huang and his wife, Jiang Mou estranged long separation. After Huang and Zhang renting public to name cohabiting couples, and gave birth to a son. After Huang found that late stage cancer, wills, will all his property was bequeathed to zhang. Zhang has been taking care of Huang (to death) is illegal, but will effectively. A: the results of illegality [China] and illegal said)

V30, the Public Security Bureau police chase vehicle behavior illegal case