"Tort liability law" will be formally implemented in July 1, 2010, "tort liability act" by means Chinese to form civil code and an important step in. Can say, "tort liability act" by following the 1999 "contract law", 2007 "property law" after the Chinese civil law a major event in the history of.

"Tort liability act" consists of 12 chapters, 92, involved in many aspects of civil rights and interests, such as the right to life, the right to health, the right of privacy, marital autonomy, guardianship, ownership, usufruct right, guarantee right, copyright, patent, trademark, right of discovery, ownership and inheritance rights and other body, property rights. If the "property law" is "static" to protect the private rights of citizens, then, "tort liability act" is "dynamic" to protect the private rights of citizens.

From product liability to falling objects, from the traffic accident to the medical damage liability, from the campus injury to the animal to cause damage to the environment pollution, from the network tort, spiritual damage compensation from the product recall to...... "Tort liability act" is a law a distance citizen recently, also be the action guideline of "civil rights". As a lawyer, we should learn, use the "tort liability law", to provide professional legal services, efficient for the party.

　                            "Twenty new rules of tort liability law"

　　One, the establishment of "equal life compensation" principle of compensation

"Tort liability law" seventeenth article: "multiple deaths caused by the same tort, compensation for death can be determined in the same amount." "The tort liability law", will break for a long time because of household registration, and result in death compensation is several times the problem.

In December 4, 2003, several issues concerning the application of law of compensation for personal injury cases, the interpretation of the Supreme People's court, the 1299th meeting of the judicial committee of the May 1, 2004 implementation of the "" (hereinafter referred to as the "interpretation" of personal injury compensation) for the first time in the form of judicial interpretation of the "life with different price" system, the "life with different price" the "legal status".

"Explain" the human body indemnity twenty-ninth stipulates: "the death compensation in accordance with the seat of the court on appeal by the year of urban residents per capita disposable income per capita income or rural residents, according to twenty years. But more than sixty years of age, the age reduction for each additional one year old years; more than seventy-five years of age, according to five years."

The regulations shall come into force as of yet, questioned by academics, practitioners and media and criticized, "interpretation of personal injury compensation in the" about "life with different price" provisions, distinguish between city residents and rural residents of different identities, in order to determine the different standard of compensation, the main consideration to the actual situation I urban and rural system of two yuan, has certain rationality. But, today, the courts or the "interpretation of personal injury compensation" as "imperial sword", the household registration as criteria of city residents and rural residents and judgment basis, can not meet the current situation of our country.
Only one life, life is the most precious. In a society ruled by law, everyone is equal before the law, distinguish between urban and rural residents is trampling on the rule of law. However, it is the Supreme People's court, in make to the higher people's Court of Yunnan province (2005) the people He Zi No. twenty-fifth "on the habitual residence in the town of rural residents for how to calculate traffic casualties compensation reply" clearly pointed out: "in personal injury compensation cases, disability compensation, death compensation and raised calculation of the cost of living, should according to the actual circumstances of the case, combined with the factors of residence, place of residence, determine the applicability of urban residents per capita disposable income (per capita consumption expenditure) or net income of rural residents (living consumption expenditure per capita) standard. In this case, the victim Tang Shunliang although is a rural household, but in city business, living, its habitual residence and the main source of income for city, cost compensation of damage should be calculated according to the related standard of the local residents." this reply to household registration in the countryside but long live, work, live in the city of the victims and their close relatives to see the dawn of fairness and justice, however, in the judicial practice, the court indiscriminately, persist in one's old ways, rarely "equal life compensation".

"Tort liability act" the tort of road traffic, safety, fire, railway transportation, agricultural machinery and death accident caused the death toll of more, can not consider the factors of age, income, determined by the same amount of death compensation, the compensation scheme to determine the "package", with the same amount of death compensation. This article, from the "life with different price" to "equal life compensation", show is the equality of rights and dignity of life, we should look forward to.


　　Two, the establishment of mental damage compensation principle

"Tort liability law" twenty-second stipulates: "the other person rights violations, causing serious mental damage, the victim may claim compensation for mental damage." Thus it can be seen, "the principle of compensation for spiritual damages the establishment of tort liability law", one is the compensation for spiritual damage restricted to the infringement of personal rights, infringement of personal rights including the right to health, violating the right of life, right of reputation, privacy, but does not include property rights; two is the need to achieve "serious mental the extent of the damage," by the infringer may claim compensation for moral damage.

Before our law has prescribed the death compensation, disability compensation, but compensation calculation, what is the content of the law, and no specific provisions. "Tort liability act" the first clear the death compensation, disability compensation, including compensation amount calculation method, etc..

In February 26, 2001, the Supreme People's court by the 1161st meeting of the judicial committee "about the problems of defining the civil right infringement spirit damage compensate responsibility" (hereinafter referred to as the "explanation" interpretation of compensation for spiritual damages) established the system of compensation for spiritual damages; "the personal injury compensation for spiritual damage interpretation" and further confirmed the personal damage, determine factors and creatively proposed the amount of compensation for mental injury including but not limited to: the degree of the infringer's fault, violation means, occasions, behavior specific circumstances, caused by the consequences of violations, profit of the infringer, the infringer to assume the responsibility of the economic capacity and the average standard of living of court location.

In April 29, 2010, the eleven meeting of the fourteenth NPC Standing Committee amended, the "State Compensation Law" thirty-fifth article also clearly stipulates: "the third article of this law or the provisions of article seventeenth circumstances, the spirit of causing damage, should be within the influenced scope of the infringement, elimination of influence for the victim, rehabilitation of reputation, apology; causing serious consequences, should pay for the damage to the spirit of the solatium."

The revised "State Compensation Law" to increase the compensation for spiritual damages provisions, carry out the spirit of the constitution about the respect and protection of human rights, reflects the progress of the rule of law, and the "tort liability act" echo each other at a distance, complement each other.

　　
　　Three, strengthen employee employer liability, weakening the responsibility

"Tort liability law" thirty-fifth stipulates: "the formation of labor relations between individuals, providing labor party in the labor process and causes damage to others, the recipient of the service shall assume the tort liability; provide the Labor Party in labor process in their own harm, according to both their own fault shall bear the corresponding liability."

This article is to hire a baby sitter, decoration industry, shipping industry (hereinafter referred to as employees) formed between individual labor relations caused by the provisions of tort liability. Employee employer liability of tort, so that the main purpose is to protect the victim's interest, as is usually the case employees is weak, the compensation capability is relatively weak, and the employer as a strong group, have certain economic ability to pay and ability to pay.

In addition, from a legal perspective, the employee behavior in the provision of services in the process should be regarded as the "act of duty," enjoy "the employer since duty behavior" interests, should also bring negative consequences take "duty behavior", this is fair, is also in line with the basic spirit of the law.

"Tort liability law" to strengthen the responsibility of the employer, the employer responsibility, strengthen supervision and management responsibilities, but also encourage employees to strengthen safety consciousness, service consciousness.

　　Four, the site added liability, privacy infringement responsibility

"Tort liability law" thirty-sixth article: "Internet users, Internet service providers use the network infringes upon the civil rights and interests, it shall bear tort liability. Network users utilize the network to commit a tort, the infringee shall have the right to inform the Internet service provider to take delete, shielding, broken links and other necessary measures. The network service provider after receiving the notice did not take necessary measures in a timely manner, jointly and severally liable for damage to expand with the network subscriber. The network service provider knows that a network user infringe upon the civil rights and interests through the network services, and fails to take necessary measures, shall bear joint and several liability with the network subscriber."

Network is a "double-edged sword", can make the Internet users to obtain information, but also illegal and criminal activities by means of virtual network. "Human flesh search" has a serious threat to the privacy of citizens, protection for citizen network in the field of civil rights of the mentioned a schedule is more important. The specification of the network infringement, adapt to the development of the times, reflects the progress of legislation.

In the "before" the tort liability law, the network right infringement case, by the Supreme People's Court on November 20, 2006, the 1406th meeting of the judicial committee December 8, 2006 implementation "on Revising the 'explain' the Supreme People's Court on the trial involving the law applicable to a number of computer network copyright disputes the decision (two)", this interpretation shall be responsible for network service provider liability stipulated. But to appear more and more social network infringe on the reputation of the right, the right of portrait and the "human flesh search" big explosion privacy behavior, but did not make the corresponding provisions.

In the judicial practice, along with the rapid development and popularization of the network, the network infringement cases have occurred from time to time. "Network of violence", "blog dispute", "network fraud" and "naked chat case" occurred, sounded the alarm to Internet users, Internet service providers and Internet regulators. "Tort liability act" to fill this gap, provides Internet users, Internet service providers use the network infringes upon the civil rights and interests, it shall bear tort liability. But the network service provider shall bear tort liability should satisfy two conditions, namely: first, from the victim to the present; second, even if the victim did not put forward any infringement occurs, the website, should also take measures, it shall be jointly and severally liable. To increase the responsibility of Internet service providers, protection of privacy.

　　Five, public places such as an accident, safety has safeguard

"Tort liability law" thirty-seventh article: "hotels, shopping malls, banks, railway stations, public places of entertainment such as the manager or the organizers of mass activities, fail to fulfill the obligation of safety guarantee, and causes damage to others, he shall bear tort liability. If the damages are caused by the behavior of the third people, third people from bear tort liability; the manager or organizer shall bear the corresponding supplementary liability. Damage to others, the third person shall bear tort liability; the manager or organizer shall bear the corresponding supplementary liability."

The provisions of this article in the management of public places or the activities of the organizers do not security obligations of tort liability provisions. The obligation of safety guarantee, refers to the hotel, shopping malls, banks, railway stations, public places of entertainment such as the manager or the organizers of mass activities, for the protection of personal and property safety of others in the reasonable scope of obligations.

To determine a reasonable range of security obligations, should be people-oriented, love life, to dangerous places or activities in social life, the behavior must fulfill the requirements necessary to prevent damage occurrence of obligations, the full protection of the personal and property safety of citizens; and to consider the situation of our country, from the point of view of promoting social harmony and stability. Objective, not blindly expand the scope of security obligations, to avoid too much social disputes; at the same time it must deal not to the relationship between the safety guarantee obligation infringement and other violations of the relevant provisions of the law, to avoid or reduce the conflict or cooperation.

For the safety and security of the obligor fails to prevent others from obligation against the obligation of safety guarantee, he shall assume the tort liability; for the safety and security of the obligor fails to prevent others from the third party security obligations, should bear the corresponding supplementary liability.

In judicial practice, the need to pay attention to is, supplementary liability third person tort liability and security obligations is a sequential. First by third shall assume the tort liability, unable to find third people or third people do not have the ability to bear the liability for compensation of all, only by the safety and security obligations shall bear tort liability. If third people have all bear tort liability, the obligation of safety guarantee people no longer assume tort liability. In addition, the security liability of the obligor is the corresponding supplementary liability. For the third people did not assume the tort liability of the security obligation, not all bear down, but its not the obligation of safety within the scope of the bear, namely according to the degree of security obligation not to security obligations to determine its should be tort liability share of.

"Explain" the human body indemnity stipulated in article sixth: "in the accommodation, catering, entertainment and other business activities or other social activities of the natural person, legal person, other organization, not reasonable limit within the scope of the security obligations and causes others to suffer personal injury, compensation for the right to request it to bear the corresponding liability for compensation, the people's court shall support. Due to the third party infringement damage occurs, the implementation of the infringement of third party liability. The obligation of safety guarantee is at fault, it shall bear the corresponding supplementary liability in its ability to prevent or stop damage. Security obligations of responsibility, can claim compensation from the third person. The right to compensation prosecution of security obligations, should be third people as the co defendant, but the third person cannot be determined except."

In judicial practice, similar to "panic buying supermarket trampled to death case", "Hunan Xiangxiang campus stampede case", and "bathing places slip to the disabled case", "the official implementation of the tort liability law", to get better solution.

　　Six, the campus injury case, responsibility to distinguish between good

"Tort liability law" thirty-eighth stipulates: "a person without capacity for civil conduct in the kindergarten, school or other educational institutions of learning, life period by a personal injury, the kindergarten, school or other educational institution shall be liable, but can prove that it has fulfilled its duties of education, management, does not undertake the responsibility."

This article is without civil capacity suffers personal injury tort liability, regulations of kindergarten, school or other educational institution. This article adopts the principle of the presumption of fault presumption, first kindergarten, school or other educational institutions to assume responsibility, if the kindergarten, school or other educational institution can provide the evidence to prove that has all the attention obligation fully and take reasonable protective measures, is not liable.

Tort liability of the kindergarten, school or other educational institution, is refers to the kindergarten, school or other educational institution of education, teaching activities or in the charge of school buildings, sites, and other educational and teaching facilities, living facilities, due to the kindergarten, school or other educational institutions, lack of education, management responsibilities, resulting in the study or living without civil capacity or a person with limited capacity for civil conduct of people have suffered damage or cause damage to others, the kindergarten, school or other educational institutions should be tort liability and fault corresponding.

In recent years, the campus injury cases increased year by year, has become a hot social issue of common concern. "Tort liability law" clearly defined the tort liability of kindergarten, school or other educational institution, is conducive to timely, effectively solve the dispute, the effective protection of the legitimate rights and interests of minors, the strengthening of the kindergarten, school or other educational institution to strengthen the teaching management, improve safety measures.

"Tort liability law" thirty-ninth stipulates that: "the person with limited capacity for civil conduct in school or other educational institutions, learning, life suffers personal injury during, school or other educational institutions not duty of education, management, should bear the responsibility."

This article is a person with limited capacity for civil conduct by the personal injury tort liability, regulations of schools or other institutions of education. The principle of presumption of fault and the "tort liability act" of thirty-eighth different, according to a person with limited capacity for civil conduct situation, this article adopts the principle of fault liability. Because of restrictions on civil act's mind has become mature, have some knowledge and judgment of things, to understand their behavior to a certain extent, consequences, for some vulnerable to physical damage behavior also have a full understanding of. Under certain conditions, to encourage its widely participate in various school activities and social activities, in order to better learning, growth.

According to the provisions of this article, limit the capacity of people in school or other educational institutions, learning, life period by a personal injury, if the limited civil people or their guardians can prove that the school or other educational institution to do not have education, management responsibilities, caused by the limited civil person personal injury has fault, schools or other institutions of education shall bear the responsibility.

"Tort liability law" fortieth stipulates: "no civil capacity or a person with limited capacity for civil conduct in the kindergarten, school or other educational institution during the period of learning, life, other than by the kindergarten, school or other educational institution staff personal injury, the infringer shall assume the tort liability; the kindergarten, school or other educational institution not its management duties, it shall bear the corresponding supplementary liability."

This article is without civil capacity or with limited capacity for civil conduct by school personnel to physical damage responsibility. This article is divided into two parts, one is tort liability beyond the kindergarten, school or other educational institutions teachers, students and other staff members bear; two is the kindergarten, school or other educational institution fails to management responsibility to bear the corresponding supplementary liability.

The main basis of campus injury cases are: (1) the Ministry of education in 2002 promulgated the "student injury accident treatment measures"; (2) the Supreme People's Court on 1988 "opinion about some problems of implementing the (Trial)" (see article 160th, article 183rd); (3) interpretation in 2003 the Supreme People's court "on certain issues concerning the application of law in the trial of personal injury compensation case" (see article seventh).

In judicial practice, campus injury cases showed multiple, group, students' personal and property safety has been a serious threat, and the students lack of certain non distinguish ability and the ability to protect themselves, leading to the campus injury cases emerge in an endless stream. "Tort liability act" according to the students' age, capacity for civil conduct and kindergartens, schools and other institutions of education as well as to whether education, management responsibilities in different situations, clear division of responsibilities, not only clear the kindergartens, schools and other institutions of education shall bear the education, management responsibilities, and to distinguish between different circumstances, increased the limit of civil behavior or the burden of proof in the guardian.

　　Seven, the defective product recall, punitive damages plugging loopholes

"Tort liability law" forty-sixth stipulates: "the product is put into circulation after the discovery of defects, producers, sellers shall take timely warning, recall and other remedial measures. Fails to take remedial measures or inadequate remedial measures caused the damage, he shall bear tort liability."

This article is on the products are put into circulation field defect is discovered after, producers, sellers should take warning, recall and other remedial measures and shall assume the tort liability.

Products in the circulation, producers, sellers may be due to some reason or technical level failed to find the defects of products, the product has entered the circulation after the discovery of the defect of a product. In this case, the producer, Seller shall immediately in a reasonable, effective way (as by the media conference) issued a warning to people, or take the recall of defective products and other remedial measures to prevent the occurrence of the damage, or to further expand.

On the basis of the provisions of this article, to put into circulation after the discovery of defective products, producers, sellers take remedial measures are not limited to, warning, recall of two, according to the different properties, characteristics, its role, status and defects of the probability of occurrence and damage taken is more conducive to the prevention of damage or further measures.

"Tort liability law" forty-seventh article: "knowingly defective product is still the production, sales, causing death or serious damage to health, the infringee shall have the right to request the corresponding punitive compensation."

This article is on the product liability punitive compensation. Punitive damages, punitive damages, a monetary compensation for the victim offender exceeds the actual damages amount, is a set of compensation, punishment and containment functions as the compensation system.

According to the provisions of this article, the application of punitive damages to meet three conditions, one is the infringer has a subjective intent, knowing that is still producing or selling defective products; two is to have the fact of damage, the damage is not the general facts of damage, but should be to cause serious damage to the fact, that is causing death or health severe damage; three is to have a causal relationship, namely, the infringee death or serious damage to health is defective products produced or sold by the infringer caused by.

"Tort liability law" provided the first defective product warning, recall system, but also for the first time introduced the punitive damages, the infringee (consumer), is undoubtedly a "Gospel", the defective products recall warning, laws, and regulations of punitive damages system of defective products, the producers, sellers and continuously improve product R & D capability, to assume more social responsibility, in order to protect the legitimate rights and interests of consumers.

In judicial practice, "Sanlu poisonous milk powder incident", " Huang astronomical claims" and "Toyota automobile recall incident" occurred, leaving people thinking too much: the product problems, enterprises should take what kind of responsibility? Consumers should be how to safeguard their rights? "The system of punitive damages in tort liability law", will be on the consumer fraud played a certain role in the containment. The defective products have serious violations of the legitimate rights and interests of consumers, in order to effectively curb the defective products into the market, regulations of punitive damages, the illegal cost aggravated offenders, so that they did not dare to rush into danger. "Tort liability law" established a warning, recall system and the system of punitive damages, which represent the general trend, enjoy popular confidence.

　　Eight, the accident vehicle loan, by the use of human responsibility

"Tort liability law" forty-ninth stipulates: "the vehicle leasing, borrowing situation all people and use are not the same person, after a traffic accident belongs to the motor vehicle party responsibility, the insurance company shall make compensation in motor vehicle compulsory insurance liability limit. Part of the problem, by the user of the motor vehicle shall bear the responsibility for compensation; the owner of the vehicle is at fault for the damage, assume corresponding responsibility for compensation."

This article is about the result of lease, from the owner of the motor vehicle and the use cases are not the same person, specify how to bear the liability for compensation after traffic accident.

Motor vehicle rental, refers to all motor vehicles motor vehicles will be delivered lessee use, income in a certain period of time, the vehicle owner charged rental costs, but does not provide a driving service behavior. Motor vehicle use, refers to all motor vehicles will motor vehicle at the time agreed by the use of the borrower. In judicial practice, vehicle leasing basically is lessor will only vehicle delivery of the lessee, lessor rent, but does not provide the driver.

In real life, for rental, lending, the separation of the vehicle and the owner, charterer, borrowing vehicle for the use of people, a large proportion of the actual controller. This is facing a motor vehicle after a traffic accident, is composed of all motor vehicles or to assume liability to pay compensation problem.

According to the provisions of this article, by motor vehicle leasing, borrowing situation all people and use are not the same person, after a traffic accident belongs to the motor vehicle party responsibility, the responsibility, should pay attention to three points: first, by insurance companies in the motor vehicle compulsory insurance liability limit the scope of compensation, i.e. the cross strong insurance priority compensation; secondly, the insurance company shall make compensation liability compulsory insurance within the range of the vehicle, the insufficient part, by the user of the motor vehicle shall bear the liability for compensation ("use" includes not only the lessee, borrower, including vehicle quality during the period of the pledgee, the repair, repair period by others during the custody custodian etc.. In vehicle quality, repair and by others during the custody, the vehicle by the pledgee, repair and custodians of motor vehicle possession, they enjoy running power, and all the people lost the operation power); finally, the owner of the vehicle is also at fault for the damage, assume corresponding responsibility for compensation. All motor vehicles in the motor vehicle lease, lend, shall examine the lessee, borrower's qualifications, and ensure the vehicle performance to meet the safety requirements, otherwise, will be based on the degree of fault shall bear the corresponding liability for compensation.

"Tort liability act" will be separated from the motor vehicle ownership and usage right, not blindly the requirement for all to take responsibility, and require the use of human responsibility. Unless the owner of the vehicle is also at fault for the damage, assume corresponding responsibility for compensation; otherwise, no illegal acts on the lessee, borrower to pay.

In judicial practice, the infringee and their agents, may be difficult to distinguish the vehicle owner and lessee, borrower's true identity and relationship, for the sake of safety, should be the driver, the vehicle owner and the insurance company as a co defendant; and as far as possible to find the owner of the vehicle evidence of the existence of fault, to the maximum extent to safeguard the legitimate rights and interests of the victim.

　　Nine, the vehicle was stolen, responsible person responsibility

"Tort liability law" fifty-second stipulates: "motor vehicle theft, robbery and snatch the traffic accident damage caused by theft, robbery, or snatcher shall assume the compensatory liability. Insurance company insurance liability limit range pays rescue expenses in the vehicle, shall have the recourse against the person responsible for the traffic accident."

This article is about the robbery of motor vehicle traffic accident damage, stipulated by who bear the responsibility for compensation. Motor vehicle theft and robbery, and one of the owner and the motor phase separated morphology. Motor vehicle theft and unauthorized driving in the most extreme case.

To understand this, need from two aspects: one is the robbery of motor vehicle traffic accident damage caused by theft, who bear the responsibility for compensation. In July 3, 1999, the Supreme People's court "reply" about the stolen motor vehicle accident who is liable for damages problems pointed out: "motor vehicle accident using theft, cause material losses of victims, the party shall be liable for damages in accordance with the law, all the stolen motor vehicle is not liable for damages." Because vehicle theft, robbery and snatch, the vehicle owner to lose to the motor vehicle operation power, and this power loss is caused by the illegal acts of robbery, is all people reluctant, sometimes all don't know, not foreseen; but, in the motor vehicle theft cases next, because all of the vehicle keep on negligence, leading to loss of motor vehicle traffic accident, with no direct causal relationship. Therefore, should bear the robbery after traffic accident liability for damages, the owner of the vehicle shall not bear the responsibility for compensation.

On the other hand, the motor vehicle stolen after the accident harm compulsory insurance, the insurance company pays rescue expenses within the liability limit of the vehicle, shall have the recourse against the person responsible for the traffic accident. "The provisions of article twenty-second of motor vehicle traffic accident liability compulsory insurance regulations": "the insured motor vehicle stolen during the accident, the insurance company in motor vehicle traffic accident liability compulsory insurance liability limit range pays rescue expenses, and have the right to recover the injurer."

Motor vehicle theft on the road, often bring great harm to people's life and property safety and public safety. The law not only for one class of motor vehicle theft and robbery criminal responsibility, and the provisions of the tort liability, which is conducive to the protection of the rights of the victims, but also responsible for traffic accidents sanctions illegal behavior.

In judicial practice, not only for the motor vehicle theft and robbery all cause huge economic losses, but also seriously harm the social public security, such as "Beijing 13 years old boy steals bus crashed into 12 cars case", "the conductor steal bus killed pedestrians run", bloody facts, warning that we must to motor vehicle robbing people severely punished.

　　Escape ten, motor vehicle accidents, cross strong insurance Xianxingpeifu

"Tort liability law" fifty-third article: "motor vehicle driver flees after a traffic accident, the vehicle compulsory insurance, compulsory by insurance companies in the insurance liability limits the scope of compensation; the vehicle is unknown or the vehicle did not participate in the compulsory insurance, pay is tort person casualty rescue, funeral expenses and, by the road traffic accident social rescue fund disbursements. The road traffic accident social rescue fund to advance, the authority shall have the recourse against the person responsible for the traffic accident."

This article is about the motor vehicle after a traffic accident escape, the provisions of the infringee how to remedy. In judicial practice, some of the motor vehicle driver in the accident, in order to escape the legal sanction, or driving to escape, or abandon the vehicle to escape, causing irreparable damage to the victim's life, property, also caused serious harm to society. According to the relevant provisions of the "road traffic safety law", the traffic accidents on the road, the driver shall immediately stop the vehicle, protect the scene; caused human casualties, the vehicle driver shall immediately rescue the injured, the traffic police or traffic management departments of public security organs and promptly report on duty. Change the scene for rescuing the wounded, the location shall be indicated.

So, should grasp from three aspects, one is the motor vehicle traffic accidents in the compulsory motor vehicle insurance, and after a traffic accident can determine the vehicle, by insurance companies in motor vehicle compulsory insurance liability limits the scope of compensation; two is the motor vehicle driver drove away, resulting in motor vehicle and the vehicle is not unknown to participate in the compulsory motor vehicle insurance situation, the need to pay provisions infringed personal casualty rescue, funeral expenses, by the road traffic accident social rescue fund to advance all costs; three is to advance social rescue fund for road traffic accidents is tort person casualty rescue, funeral expenses, road traffic accident social rescue fund management has the right to the escape of the motor vehicle driver shall not buy, buy the compulsory motor vehicle liability insurance owner or manager, the person responsible for the traffic accident compensation.

"The tort liability law", is not only to the infringement of a protection, and through the form of law requires insurance companies to pay the infringed person casualty rescue, funeral expenses, insurance company to avoid the motor vehicle traffic accident of motor vehicle compulsory insurance or no grounds to refuse to pay the infringed person casualty rescue, funeral expenses; at the same time, through the legal form "activation" of the social rescue fund for road traffic accidents, and give the road traffic accident social rescue fund management institutions to the right to recover the person responsible for the traffic accident, the "tort liability act" shine, popular.

In judicial practice, motor vehicle traffic accidents, driving away or leave the bike there, not only for violation of traffic safety laws and regulations, but also seriously damage the security of human life, property infringement; and, to avoid the insurance company on the grounds of refusing to pay the infringee rescue expenses and funeral expenses.

　　Eleven, the hospital rescue critically ill patients, without the consent of family

"Tort liability law" fifty-sixth article: "because of the emergency rescue dying patients, cannot obtain the opinion of a patient or his close relatives, the approval of the person in charge of the medical institution or an authorized person in charge, the corresponding medical measures may be taken immediately."

This article is about the special provisions for emergency situations of informed consent. "Regulations" medical institutions management thirty-third stipulates that: "the medical operation, special examination or special treatment, must be patient consent shall be obtained, and the relationship between family members or the consent and signature; unable to obtain the views of patients, family or relationship shall obtain the consent and signature; unable to obtain the views of patients and no family or people present, or in other special circumstances, the doctor shall put forward a medical treatment plan, the implementation of the medical institutions responsible person or authorized personnel responsible for approval." Thus, the "tort liability law" continuation "Medical Institutions Management Ordinance" is the spirit of.

The provisions of this article "can't get ideas" patients or their close relatives, mainly refers to patients can not express the will, no close relatives to accompany, but also not to close relatives, not including the patient or his close relatives expressly refused to take care of.

In judicial practice, in 2007 November, working in Beijing Li Liyun pregnant women dystocia, dying, her boyfriend Xiao Zhijun refused in operation of single sign on, the doctor and the nurse be at a loss what to do, everybody of maternal deaths, 3 hours later, unable to agree on which is right. "The human nature" of the tort liability law clauses, will give the medical institutions more critically ill patient rights, not only to solve a dilemma at present of medical disputes, and protect the lawful rights and interests of patients.

　　Twelve, medical problems, patients claim basis

"Tort liability law" fifty-ninth article: "because of defective drugs, disinfectants, medical equipment, or enter the unqualified blood causing injuries to the patient, the patient can to producers or institutions to claim compensation, may request compensation from the medical institution. Patient seeks compensation from the medical institution, the medical institution shall have the right to compensation, the responsible producers or institutions from." This article is about the defective drugs, disinfectants, medical equipment, provisions or the input of unqualified blood causing injuries to the patient responsibility.

The drug, which belongs to a medical instrument disinfection preparation and product, "specified in the first paragraph of article forty-first of the product quality law": "if the defect of product causes any property other than personal, defective products (hereinafter referred to as the property of others) in damages, the producer shall be liable for compensation." Rule forty-third: "personal, property damage caused to others due to a defect in a product, the victim may claim compensation from the producer, may demand compensation from the seller of the products. The product belongs to the producer's responsibility, compensation for the sellers, the sellers have the right to recover the loss from the producer. Belonging to the seller of the products liability, the compensation is paid by the producers, the producers have the right to recover the seller of the products."

Patients as consumers, accept the medical treatment service in medical institutions, defective drugs, disinfectants and medical instruments for medical damage, have the right to claim compensation from the medical institution. Medical institutions to patients enter the unqualified blood causing injuries to the patient, starting from the protection of patient's point of view, whether it is happened in the process of transfusion damage, illegal collection of blood or blood provider damage caused to patients, the medical institution for patients affected by fault or damage to blood transfusion, medical institutions should bear the responsibility.

In judicial practice, because of lack of clear legal provisions, in patients with impaired, the relevant units passing each other, result in everywhere, rights not. "Tort liability act" stipulates patients can not only to producers or institutions to claim compensation, may request compensation from the medical institution; at the same time, if the patient seeks compensation from the medical institution, the medical institution shall have the right to compensation, the responsible producers or institutions from.

In judicial practice, similar to the "big head doll event", "Qieryao event" and "Shanxi vaccine events" and other legal problems, will be with the "tort liability act" the official implementation of history; at the same time, "the provisions of tort liability law", will make the illegal drug, disinfectant, medical equipment producers or institutions have been hit, help to alleviate the doctor-patient dispute, promote the doctor-patient harmony.

　　Thirteen, patients have a right to privacy, privacy must share responsibility

"Tort liability law" sixty-second article: "medical institutions and their staff shall keep confidentiality of patient privacy. Disclosure of the patients' privacy or untreated patients consents to the disclosure of medical records, causing injuries to the patient, he shall assume the tort liability."

This article is about the patient privacy protection.

The so-called privacy, is a natural person reluctant to disclosure of personal information. Privacy is invisible, is the spirit of personal factors. Privacy is the law entrusts with natural person to enjoy the peace of private life and private information is not the transferee aggression, aware, use, disclosure and public rights. Private life belongs to privacy is very broad, from family members, social relations, the status of the property, to the person's height, weight, history, physical defects, health, love, marriage history, and each person's daily life.

The protection of privacy, is each natural person as a basic right should enjoy the subject of civil rights, it is universal, not only exists in the doctor-patient relationship. However, the reality of the particularity of contradiction between doctors and patients in medical disputes and the current based on this method, special provisions were made for this kind of privacy protection special problem, make the patient advocacy with the legal support.

Medical institutions and medical personnel has two kinds of forms of patient privacy infringement; one is leaking patients privacy. Both medical institutions and medical personnel will be personal privacy information in the course of diagnosis and treatment of patients, released, disclosure behavior, such as external dispersion in patients with hepatitis B, AIDS, sexually transmitted diseases, a flow of facts, resulting in the privacy of the patient is exposed, the spirit of great suffering; also includes without patient consent and patient the body is exposed to diagnosis and treatment activities irrelevant personnel behavior.

Two untreated patients consents to the disclosure of medical records. Patients in the treatment process, usually with the medical staff inquiries, stating their condition, medical history, symptoms and so on a series of private information, in conjunction with the diagnosis and treatment of medical personnel; at the same time, the medical staff will be based on the patient's statement, the partial information of medical records were formed. Once a patient privacy this part of medical record information disclosure, not only cause patients to mental pain, but also leads to the decrease of the evaluation of patients with society, such as some kind of mental defect, patients suffered from the disease be destructive to the morals.

In the judicial practice, a lot of doctor-patient dispute originates from the patient privacy is not proper disclosure, such as some parts of the gynecological examination allows interns, unmarried women do stream of people to observe the operation by events intern collective observation and other, make the patient is very embarrassing, and even to court.

As the "heal the wounded and rescue the dying, treatment and prevention of" medical personnel, to provide medical services to the patients at the same time, we should adhere to the "medical practitioners law", "tort liability act" and "medical records management regulations" the relevant provisions, improve the medical level and occupation moral, no unauthorized disclosure of privacy and the patient's medical records, to maximize the protection of patients privacy.

　　Fourteen, patients as consumers, excessive examination is not desirable

"Tort liability law" sixty-third stipulates that: "the medical institutions and medical personnel shall not conduct unnecessary examinations in violation of rules of diagnosis and treatment."

This article is about the medical institutions and medical personnel shall not conduct unnecessary examinations in violation of the standard of diagnosis and treatment.

Unnecessary examination, also is the media and the public pay more attention to the "excessive examination". "Excessive examination" first in the normative documents, is formulated jointly by the Ministry of health and the State Administration of traditional Chinese medicine "in 2006 on the establishment of long-term mechanism to avoid bribe in medical field work program".

"Excessive examination", is provided by medical institutions of medical examination service beyond the individual and social care practice needs of patients, medical ethics scholars called it "excessive examination".

"Excessive examination" is not only relates to the medical institutions and medical personnel treatment of the problem, but also a complicated social problem solving, ultimately depends on the reform of China's medical and health system and the establishment of medical and health security system.

Medical institutions and medical personnel in order to make money, forcing patients to unnecessary inspection, Dazhi disease, not only to give patients caused heavy economic burden, but also leads to unnecessary risks and damage to the body. "Harbin sky high price of medical fee event", is a typical "excessive examination".

In judicial practice, patients should be to the medical staff to understand the relevant examination project and cost in medical treatment, and to distinguish between what is necessary to check, which is not checked, for unnecessary tests, patients have the right to refuse; if the patient accept the inspection, shall obtain, retain the relevant charges certificate inspection items. If disputes arise, the rationality of the judicial authentication institutions can apply to the court to entrust to medical expenses of the screening, identification.

　　Fifteen, medical behavior should stop, rational adults welcome

"Tort liability law" sixty-fourth stipulates that: "the medical institutions and medical personnel's legitimate rights and interests protected by law. Interference with medical order, obstruction of medical staff, life, shall bear legal liability in accordance with the law."

This article is about the maintenance of the medical institutions and medical personnel's legitimate rights and interests.

Diagnosis and treatment is a "double-edged sword", if the patient All is well., rehabilitation hospital, the patients and their families will be grateful for the doctor, once the patients with critical illness or even death, family members of patients think doctors don't make all-out efforts, the final and then become enemies with each other.

So, medical institutions and medical personnel should not only consider the patient as in the protection of the interests of the weaker party clinic activities, is responsible to the patient, should inform the medical risk, patient with medical activities; on the other hand, due to the limitations, the unknown and the high risk of the treatment of the patients and their families, medical coping mechanism and medical personnel to give a certain degree of trust and understanding, calm, pay attention to the preservation of the evidence, legal rights, but not without interference with medical order, affect the normal work, life of the medical staff.

In judicial practice, due to the lack of trust between doctors and patients to reach an agreement through consultation, to. The problem with applying for medical damage identification of high cost, long time, litigation, litigation is difficult, both patients and medical institutions, are not willing to compromise and to resolve through legal channels. Patients and their families a "make medicine", "make visit", and even the threat of medical institutions, insult, beating the medical personnel and other excesses. "Occupation were" emerge as the times require, there were death, disability, they go to their families to talk about, "to take the business", the medical institution is passive. In order to make concessions to avoid trouble, can only swallow insult and humiliation silently, "peace", which also contributed to the families of patients with invisible "make medicine", "make visit" psychological tendency, cause different degrees of burden for medical institutions.

　　Sixteen, environmental pollution incident, responsibility clearly

"Tort liability law" sixty-fifth stipulates: "the harm is caused by environmental pollution, the polluter shall bear tort liability.

According to the "environmental protection law" second article: "environment, refers to the overall impact of human survival and development of all kinds of natural and artificially transformed natural factors, including air, water, oceans, land, minerals, forests, grasslands, wildlife, natural relics, cultural sites, nature reserves, scenic Scenic Area, city and country etc.." The pollution of the environment, is that due to human factors of adverse changes in the environment occur chemical, physical, biological characteristics on the cause, thus affecting human health and survival, the survival and development of the phenomenon of biological.

"Tort liability act" refers to the pollution of the environment, both in the living environment pollution, including pollution of ecological environment. Damage caused by pollution behavior of environmental pollution, the polluter shall bear tort liability.

Environmental pollution liability as a kind of special tort liability, the particularity of the first performance in the principle of no fault liability rule. According to the principle of liability without fault, only the damage fact, causality between behavior and damage polluters in pollution, regardless of any fault, it shall bear tort liability.

Article sixty-sixth stipulates: "any dispute arising from environmental pollution, there is no burden on the causal relationship between the polluter shall and behavior law does not assume liability or mitigation of liability and damages."

The burden of proof for the environmental pollution liability of responsibility is not responsible for and mitigate the burden of proof and the causal relation, the current environment of China's laws and judicial interpretations have provisions. Such as "water pollution prevention law" eighty-seventh stipulates: "a suit for damages caused by water pollution damage, does not bear the burden of proof by the sewage side on the causal relationship between the legal provisions of the exemption and behavior and damage." "Solid waste pollution prevention and control law" eighty-sixth article: "because of environmental pollution caused by solid waste damages, there is no causal relationship between the burden of proof by the offender law exemption and behavior and damage." The Supreme People's court "several regulations about the civil action evidence" the fourth stipulation: "the tort litigation of burden of proof in accordance with the following provisions?:...... (three) a suit for damages caused by environmental pollution damage, there is no causal relationship between the burden of proof by the offender law exemption and behavior and damage;......" The Supreme People's court "on the application of" the PRC Civil Procedure Law > opinions on several problems of "the seventy-fourth stipulation:" in the litigation, the parties to submit their ideas, have the responsibility to provide evidence. But in the tort action, the fact of infringement of the plaintiff, the defendant denied, the defendant bear the burden of proof:...... (3) a suit for damages caused by environmental pollution damage;......"

Because of the pollution damage to the environment in general is long-term, latent, persistent and extensive features, process and environmental pollution damage is complex, some environmental pollution damage involves a series of physical, chemical, biological, geographical and medical professional knowledge and technology, but also, in determining the causal relationship, a fruit of phenomenon...... Because of the particularity of environmental pollution tort, causality cause pollution of the environment is very complex.

Therefore, environmental pollution disputes, the polluter shall and behavior law does not assume liability or mitigation of liability and the harm has not bear the burden of proof causality.

Rule sixty-seventh: "two or more polluters pollution of the environment, pollution degree of liability is determined according to the factors, types of pollutants, emissions."

In a certain period of time, space, may appear on a joint sewage pollution behavior may exceed the environmental capacity and environmental self purification capacity, environmental pollution causes damage to the victim, the victim liability between multiple polluters size is determined according to the factors, types of pollutants, emissions, for the polluter also, relatively fair, reasonable.

Rule sixty-eighth: "third party damage caused by pollution of the environment, the victim may require a compensation from the polluter, may request compensation from the third person. Polluters to pay, have the right to claim compensation from the third person."

Third people's fault, refers to besides pollution and infringement of third people, has the fault of the victim damage, the fault includes intention and negligence. The provisions of this article is the cleavage damages caused by environmental pollution is caused by the fault of the third person, the problem of how to bear the responsibility.

The provisions of this article, from the third party damage caused by pollution of the environment, the victim can request compensation from the pollution, can also claim compensation directly to the third person. The polluter general compensation capacity than the third strong, provision of pollution first for the third of them take responsibility and compensation is intended to the protection of persons against infringement, but in third of the compensation capacity than the pollution under the condition of strong, should be given to choose the infringer compensation object, the infringee is may request compensation from the pollution, can also be compensation from the third person.

"Tort liability act" to special form provisions on environmental pollution liability, both attach great importance to the problem of environmental pollution, is the premise to fully absorb the provisions in relevant laws and regulations and judicial interpretations of the advanced idea of, for solving environment pollution disputes arising problems in judicial practice, strengthen the pollution of the social responsibility, maintenance be plays an important role in guiding significance of infringement of the legitimate rights and interests.

　　Seventeen, the highly dangerous work, responsibility clearly

"Tort liability law" seventy-third stipulates: "a high-altitude, high pressure, underground mining activities or the use of high-speed rail transport and causes damage to others, the operator shall assume the tort liability, but can prove that the damage has been caused by the victim intentionally or not caused by a force majeure event, do not assume responsibility. The victim to the occurrence of the damage is at fault, liability of the operator may be mitigated."

This article is a general provision of highly dangerous liability. Our law system about high risk liability is mainly composed of "general principles of civil law" of the highly dangerous liability for general provisions, the "railroad law", "Civil Aviation Law" and "power law" and other related high risk behavior of the civil liability provisions.

The highly dangerous work, refers to civil nuclear facilities, including the use of high-speed rail transport and engaged in high-voltage, high-altitude, underground mining and other highly dangerous activities, including possession, use of flammable, explosive, poisonous and radioactive hazardous substances act.

Damages caused by highly dangerous operation, shall bear the liability without fault, as long as the person, property damage caused by the highly dangerous work, regardless of whether the operator has fault, shall bear tort liability. The highly dangerous liability adopted no fault liability, but also international practice.

This article will be the victim intentionally or not a force majeure damage is not liable as an exception, both to reduce the operator's obligation of compensation, but also to strengthen the duty of the victim, helps to balance the operators and the victim's responsibility, reduce unnecessary disputes.

In judicial practice, "pedestrian violation into the high-speed road killed", "Beijing Metro rolling off the young legs case" by the media and the public attention, killed a pedestrian entering the freeway is the normal running of the vehicle, the highway is belongs to the highly dangerous work? If you belong to, liability without fault liability to non motor vehicle shall bear the liability for compensation is fair? The subway as rail transport, whether to belong to the high-speed rail transport? If you do not belong to, what belongs to the high-speed rail transport? If you belong to, the Beijing Metro shall assume the tort liability of what?......

"The official implementation of the tort liability law", will clarify the legal understanding and application of the disputes, to resolve social contradictions, to protect the interests of the weak will play a positive role.

　　Damage to people caused by eighteen, abandoned animal, relevant personnel to undertake responsibility

"Tort liability law" eighty-second stipulates: "causes any harm to another person, deserted during the runaway animal escape in the abandoned, the original animal, the keeper or manager shall bear tort liability."

This article is about the out of control animal causes damage to others responsibility is a major bright spot, "tort liability act". Because, as more and more people feeding animal, some animal or abandoned, or lost, the city of stray cats, dogs and other animal growing. A large number of stray animal became not only the problem of city management, but also for the city residents living, health caused by the unstable factors.

Because of the large number of stray animal, caused great harm to the city residents. No matter the keeper or manager of the animal people abandoned animal, or not to the animal escape responsibility, its action has the danger of city residents, and the fact of damage is caused by the risk of losing any animal in management and control of human flow. So, in order to city residents' benefits, in order to fully protect the interests of the infringee, abandoned, escape the animal keeper or manager shall be on their abandoned animal behavior, and the behavior of responsibility manage not to management obligations.

　　Nineteen, the engineering problems, the responsibility to the joint

"Tort liability law" eighty-sixth article: "buildings, structures or other facilities collapse causes damage to others, by the construction unit and construction unit shall bear joint and several liability. Construction units, construction units compensation, there are other responsibilities, shall have the recourse against other persons liable. For other reasons responsible person, buildings, structures or other facilities.

This article is about the buildings, structures or other facilities collapse liability for damage caused by others.

One aspect of the present provisions of construction units and construction units of the joint and several liability and construction units, construction units recourse to other responsible person, on the other hand set for other reasons responsible people, buildings, structures or other facilities collapse causes damage to others, there are other liable person shall bear tort liability.

"Other responsible person", including survey, design, supervision units, people outside the survey, design, and the responsibility of supervision units. If the owners or other users in the process of housing renovation of housing, unauthorized Cagai housing load leads to the collapse of the housing and causes damage to others, the owners or other users also belong to "other responsible person" category, it shall bear tort liability.

In judicial practice, "fragile building", " building collapse" and "building collapse" seriously jeopardize the life and property safety, "tort liability act" to this kind of bean curd dregs, urge the construction units, construction units and other persons liable to improve housing quality, strengthen safety management, ensure the citizen life and property safety, to avoid the tragedy.

　　Twenty, falling objects, neighborhood responsibility

"Tort liability law" eighty-seventh article: "objects thrown out from buildings or objects fallen from buildings and causes damage to others, it is difficult to determine the specific tortfeasor, unless they can prove that they are not infringed, by the users of the building who may pay compensation."

This article is about the objects thrown out from buildings or objects fallen from buildings and causes damage to others, it is difficult to determine the specific tortfeasor, how the infringement relief provisions.

According to the provisions of this article, is unable to determine the specific tortfeasor, by the infringer prove himself was thrown objects, buildings, falling injury, by building use people (including all the people, building the lessee, borrower and other buildings.) prove himself is not infringed. Building user cannot prove that he is not infringed, to compensate the victim damage. If there is evidence to determine the specific tortfeasor, other users of the building who may not need to prove himself is not infringed.

Objects thrown from buildings, falling objects cause damage to others, it is difficult to determine the specific tortfeasor, by the users of the building who may be the infringer compensation. Brother may be the users of the building shall not assume the joint and several liability between two people, according to copies respectively by the infringer compensation.

In judicial practice, the clear, fall damage by physical situation occurs from time to time, such as "Chongqing ashtray case", "Ji'nan board case" and "Shenzhen glass case", due to the lack of clear legal provisions, resulting in this kind of case adults difficult. "Tort liability act" will support for solving this kind of "legal problems", embodies the "care for life, people-oriented" legislative concept and judicial feelings.

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