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Law of Tort liability

The NPC Standing Committee began its consideration of the draft Law on tort liability 22nd. The draft law on tort liability includes 12 chapters and 88 articles, including 8 types of tort liability, such as cessation of infringement, elimination of danger, return of property, compensation for loss, apology, etc. It has become a big "bright spot" to regulate the tort of network tort, product liability recall system, environmental pollution, medical dispute, animal wounding and so on, which is closely related to the people.

Focus case

The first case of "human flesh search"

December 2007, Beijing white-collar Ginger killed himself. His suicide blog, "Death Diary", said that her husband Faye Wong's extramarital affairs make it miserable. Netizens launched "human flesh Search" to Faye Wong. Faye Wong would therefore sue the courts for three websites that spread blogs and posted their messages.

December 18, 2008, Chaoyang Court judgment, the banner nets and "North flying migratory birds" founder Zhang Tort set up, compensation for Faye Wong Spirit loss, such as 9367 yuan and public apology in the website, and Tianya network due to the reasonable deadline in time to delete the relevant content, was sentenced to exemption.

"Human flesh search" violations of the rights of victims of the responsibility of the law will have a unified regulation, the site if the victim to ignore the shielding, delete requirements, to bear joint and several liability.

As a scaffolding law in China's legal system, the draft law on tort was submitted to the NPC Standing Committee for a second time yesterday. The Law Committee of the NPC introduced the law of tort as part of the draft civil law, and the 31st meeting of the NPC Standing Committee was first considered in December 2002. As compared with the draft first instance, the current draft expands to 88 articles, and the special chapter adds to the more prominent medical damage liability in recent years.

The Legal Committee said that the legislation of tort liability focuses on solving the problems related to the interests of the people, the contradictions and the opinions of the parties, and fully protects the rights and interests of the citizens and legal persons in the life, such as product defects, motor vehicle traffic accidents, medical damage, environmental pollution, network infringement and animal damage. However, we should consider the level of economic and social development at present and rationally determine the scope of compensation and the standard of compensation.

The draft stipulates that the network service provider, knowing that internet users use their network services to enforce infringement and fails to take necessary measures, shall bear joint and several liability with the network user. The compensation for mental damages is also included in the legal system of tort liability for the first time.

Lixin, vice president of Chinese Law Society and Professor of law School of Renmin University of China, participated in the symposium and seminar on the law of the National Standing Committee of the People's Congress, saying that the Civil Code of the law of tort is incomplete, although there are about more than 20 provisions in the general rules of civil law which stipulate tort liability The Supreme Court has dozens of judicial interpretations that can solve a lot of problems, but "it is necessary now to put them together and become a complete law." ”

Keyword 1 network infringement

Site does not delete infringing content will be responsible

"Draft provisions"

The network service provider, knowing that the network user uses its network service to carry out the tort, fails to take the necessary measures, and undertakes joint and several liability with the network user. If the network user uses the network service to implement the tort, the victim has the right to send a notice to the Network service provider requesting to remove or shield the infringing content. If the network service provider has not taken the necessary measures in time after being notified, the extended part of the loss is jointly and severally liable to the network user.

Interpretation】

Beijing News: There are a lot of cyber tort cases, the Chaoyang court has just sentenced a "Chinese meat search first case," The Faye Wong case, the draft provisions of the network infringement contains human flesh search this case?

Lixin: Included. This draft is divided into two levels, the first layer is the site aware of the user infringement, you still work with him, that is to bear joint and several liability, the second is the site should be deleted after the post, if not deleted, but also to bear joint and several liability.

For example, Faye Wong's case, several are the site posted their own posts, of course, to bear the responsibility of violating the right to privacy, if you do not know is tort, later, someone else a warning you are tort, you know, it deleted, this situation is not considered infringement. One of the defendants in Faye Wong's case was not responsible.

Beijing News: Whether the victim, this how to define?

Lixin: The site is easier to operate, people put forward that is infringement, or delete or on the screen, the obligation is very clear, is that people say infringement you have to do.

Beijing News: Should the tort law stipulate a time limit, for example, within 24 hours the site must be deleted or blocked?

Lixin: A law, it is impossible to do so specific provisions, the law said timely deletion of posts, whether in time by the judge himself to judge can be.

Key Words 2 mental compensation

Serious mental damage may be claimed

"Draft provisions"

If the victim's right to life, health and death is violated, the close relatives of the victims may request the compensation for mental damages.

If the intentional infringement of another person's right of personality or identity causes serious mental damage to others, the victim may request mental damages.

Interpretation】

The National People's Congress Legal committee said that the current law does not expressly provide for the compensation for mental damages, but there are many cases of mental damage compensation in the trial practice, the draft should make clear provisions for mental damage compensation, but the scope of compensation for mental damages should be strictly restricted, and the scope of compensation for mental damage is mainly restricted to the situation of serious infringement on

Beijing News: To cause serious mental damage to others to compensate, "serious" how to define?

Lixin: We have expressed our views on this provision, and we think that the stipulated standards are too high. We tend to take the United States tort law of the reputation of damage compensation, for example, the general infringement of the right to reputation, the damage to the reputation, in fact, little, hundreds of thousands of dollars, with a soothing nature, said infringement, to compensate but not a lot.

Keyword 3 pollution dispute

Enterprise sewage must be self-certified "clean"

"Draft provisions"

As a result of environmental pollution disputes, the polluters shall bear the burden of proof in the absence of causation between the law's exemption and its actions and damages. If the discharge complies with the prescribed standards, the polluters shall bear the corresponding liability for damages caused to others.

Interpretation】

Beijing News: Environmental Pollution Damage, the victims often do not have the technical conditions and ability to testify, "polluters self proof clean" This rule can solve this problem?

Lixin: In the 60 's, Japan's environmental pollution is very serious, many victims of pollution to the court, because the cause and effect of the evidence to prove that the court later dismissed, resulting in a lot of social problems, many people are not compensated. In this case, Japan used a German rule, called the presumption of causation, as long as the victim can prove to a certain extent, the direct presumption of a causal relationship.

After this presumption, the other side of the sewage said that it had no causal relationship with me, and that he would have to present evidence to prove that there was no causal relationship. If he cannot bring it up, the presumption shall be established and shall be liable for compensation. Now almost all countries in the environmental pollution is a causal relationship between the presumption.

Beijing News: Sewage meets the prescribed standards cause damage, but also to compensate, why?

Lixin: Sewage is in line with the standard, this is only the general requirements of society. But you meet the standard sewage also caused the damage to others. Although you can produce, you have to pay for the damage. This is right and helps protect the interests of the people.

Key Words 4 Medical rescue

Emergency rescue without family signature

"Draft provisions"

For emergency cases such as rescuing critical patients, it is difficult to obtain the consent of the patients or their close relatives, the medical institutions in charge of approval can immediately implement the corresponding medical measures.

Interpretation】

Beijing News: This regulation is not inspired by the Zhijun case, in the case of critical emergency, if no family signature, medical staff if it is necessary to perform surgery?

Lixin: This is related to the Zhijun case, but it's not entirely because of him. In the original draft of the law of tort experts, this provision is. This is the case, as long as there is the need to rescue, the need to rescue the time in fact, do not need any approval, hurriedly save the line.

Even if a medical institution has a slight fault, it is not a fault, for the life of the rescuer is important. When this part was written, it was related to the Zhijun case.

Beijing News: We notice that the provision is "can" two words, in terms of the general meaning of our law, does it mean that medical institutions can do or not do?

Lixin: This can not necessarily as we understand that, as a medical institution, this "can" in fact with a certain degree of compulsion, the law has stipulated that you can, if not do, to take responsibility.

Beijing News: If the future law after the passage of this statement, in the judicial practice will not arouse a different understanding?

Lixin: I think it would be a little better to say "yes" if it doesn't seem too daring to say. To say that this situation is "not possible", to come up with the basis, can not get the basis to be done.

Key Words 5 car accident Responsibility

Car accident users are responsible

"Draft provisions"

If the owner and the user of the motor vehicle are not the same person in the case of leasing or borrowing, the motor vehicle user shall bear the liability for the liability of the motor vehicle after the traffic accident. The owner of the motor vehicle also has fault for the occurrence of the damage and bears the corresponding liability.

Interpretation】

Beijing News: Before the local household registration can not be hung license plate, produced a lot of "back car clan", body back hundreds of cars, and then an accident, very troublesome. How does the present judicial practice generally deal with?

Lixin: It's not a very uniform approach. These years change is also relatively large, the first few years, the general is to register the owner of the responsibility, and then the judicial practice that seems to be unreasonable, said the actual owner of the responsibility, but the registered owner to tie him in, but also to bear the responsibility, also implemented a paragraph. This time, we feel that it is better for the actual owner to assume the responsibility.

This edition of the interview/newspaper reporter Yang Huayun

Focus case

Zhijun refused to sign the event

November 2007, Zhijun because refused to sign consent to the hospital for Caesarean section surgery, its pregnant "wife" Li finally and the children both died, "Zhijun refused to sign the incident" aroused widespread social concern. Later, Li's parents will Chaoyang Hospital and Zhijun together to court. January 2008, Chaoyang District People's court accepted the case.

Key Words 6 animals cause human damage

The strong dog is responsible for injuring the keeper

"Draft provisions"

If the animal in captivity causes damage to another person, the animal keeper shall bear the liability for tort, but can prove that the damage was caused by the gross negligence of the victim and may relieve or exempt the liability of the animal keeper.

The animal breeders shall bear the liability for damages caused by other animals, such as the raising of spirits, in violation of regulations.

Zoo animals cause damage to others, the zoo shall bear the liability, but can prove to do the administrative duties except.

Because the third person's fault causes the animal to cause others to damage, the victim may request the third person to undertake the compensation responsibility, may also request the animal husbandry person to undertake the compensation responsibility, the animal keeper bears the compensation responsibility, has the right to recover from the third person.

Interpretation】

Beijing News: Animal Damage to people more and more disputes, how to understand the provisions?

Lixin: The original general principles of civil law on a provision, 127th. Now divided into four articles, the first is domesticated animals, is no-fault liability, but there is an exemption condition. The second provision is the fierce dog and so on, we say also include the Beast and so on, is very ferocious animals, no exemption conditions. The third is the zoo animals, the zoo animals with the presumption of fault, the zoo can prove that they have no fault, it may not assume responsibility. The fourth provision is about the fault of the third person, the third person is negligent third person undertakes.

Keyword 7 product defects

Punitive compensation of product defects

"Draft provisions"

The victim has the right to claim punitive damages in accordance with the law, knowing that the product is still producing and selling, causing the life and health damage of others.

Interpretation】

Beijing News: The current Sanlu milk powder incident, the event of the public before the three deer actually know milk powder problem, but has been hiding, there are many victims in the court to sue Sanlu, hope to claim, but progress is very small.

Lixin: Now this case is how to deal with, as if still see not very clear. But the law of tort liability of this case is very clear, deliberately know that the product is defective, but also put it into the market, causing damage, it is necessary to use punitive damages. If this is the case, the milk powder, like Sanlu, is not only to compensate for normal losses, but also to compensate for punitive damages, which is a relatively serious sanction for them.

Beijing News: We see a lot of such American jurisprudence, the draft punitive damages is more obvious in the study of the United States tort law?

Lixin: Because this punitive compensation is not a civil law system, it is a system of Anglo-American law. We are now referring to this article in Tort law is the United States.

Beijing News: Will punitive damages be felt too harshly?

Lixin: Consumer Rights Protection Law stipulates a penalty, called product fraud and service fraud, but that is the contract law of punitive damages, not tort law, so the compensation is the double return of the price as a punitive compensation.

This punitive compensation is to do the damage to make the standard, for example, the loss of 500,000, to punitive damages, it is possible to pay 1 million.

Key Words 8 drug defects

Medical defects may be claimed in hospital

"Draft provisions"

The patient may seek compensation from the medical institution or claim compensation from the producer for the damage caused by the defects of medicine, disinfectant and medical device. After the compensation of the medical institution, it belongs to the producer and other third person, and has the right to recover the third person.

If the patient is harmed by the importation of unqualified blood, the patient may seek compensation from the medical institution, or he may request compensation from the blood supply agency. If the medical institution is responsible for the blood supply institution after compensation, it has the right to recover the blood supply institution.

Interpretation】

Beijing News: In practice, for example, patients in the hospital installed heart stent or pacemaker surgery, after the hospital installed, the quality of the hospital regardless of, the hospital said to find production of people, such a dispute is currently usually how to deal with?

Lixin: There was no direct regulation in the past, but it is applicable to the provisions of the product quality law. Now in accordance with product tort rules to deal with, for medical devices and other producers are not negligent liability, that is, there is no fault to be liable for compensation.

Now there is a place in the provision that is not very clear, the hospital should bear the responsibility, but must have the fault. For example, this bracket or pacemaker, he had the fault to break this thing, then he should be responsible. If there is nothing wrong with him in the hospital, the east suit is due to defective material, which is caused by the producer, which should be blamed by the producer.

Beijing News: So now the provision can not only seek compensation to the medical institutions, but also to the producers to ask for compensation, how to consider? The legislature is not considering reducing the cost of resolving disputes among patients.

Lixin: Maybe so, but I personally feel like it's not.