Article 1243
If the manager can prove that sufficient safety measures have been taken and sufficient warning obligations have been fulfilled due to unauthorized access to areas of highly hazardous activities or storage areas of highly dangerous goods, the responsibility may be mitigated or waived if the manager can prove that sufficient safety measures have been taken and sufficient warning obligations have been fulfilled.
1. The main purpose of this article
This article is about the liability for damage caused by unauthorized entry into a highly hazardous activity area or a highly dangerous goods storage area.
II. Evolution of the Provisions
Article 76 of the original Tort Liability Law stipulates that: "If the manager has taken safety measures and fulfilled the warning obligation if he enters a highly dangerous activity area or a highly dangerous goods storage area without permission and suffers damage, he may reduce or not be liable." In the process of compiling the Civil Code, the above provisions have been retained and revised and improved: First, some opinions have pointed out that the expression "the administrator has taken safety measures and fulfilled the duty of warning" in Article 76 of the original Tort Liability Law does not show whether the burden of proof should be borne by the administrator. Therefore, this article amends "the administrator has taken" to "the administrator can prove that it has taken" to clarify the burden of proof, which does not change the rule of Article 76 of the original Tort Liability Law, but only makes it clearer. Second, it was suggested that the high risk liability in this chapter was aimed at highly dangerous conduct. The obligations of managers of areas with high levels of risk activities or areas where high risks are stored should be increased. After research, this article amends "taking safety measures" to "taking adequate safety measures" in Article 76 of the original Tort Liability Law, and amends "fulfilling the duty of warning" to "fulfilling the obligation of adequate warning". This change is intended to highlight the high level of risk of conduct and to raise the standard of duty of care for managers.
3. Interpretation of Provisions
This article stipulates the liability for damage when entering a highly hazardous activity area or a highly dangerous goods storage area.
The principle of no-fault liability applies to the liability for damage caused by entering a highly hazardous activity area or a highly dangerous goods storage area. Since highly hazardous activities or highly dangerous operations of highly dangerous substances are legal and justifiable, and are the use of modern science and technology to serve the society and benefit the national economy and people's livelihood, the requirements for the application of the principle of no-fault liability to such high-risk liability should be appropriately relaxed: if the high-risk manager enters the high-risk activity area or the high-risk storage area without permission and is damaged, if the high-risk manager has taken sufficient safety measures and fulfilled the warning obligation, he shall not bear all the liability for compensation, but shall be reduced or exempted from liability. Only if adequate safety measures are not taken and the warning obligation is not fulfilled, the high risk manager will bear full liability for compensation. This is a relatively loose principle of no-fault liability, which is close to the principle of presumption of fault.
The constitutive elements of liability for damage to unauthorized entry into a highly hazardous activity area or a highly dangerous goods storage area are: (1) it must be in a highly hazardous activity area or a highly dangerous goods storage area;
(2) the person with a high risk activity or a manager of a high level of danger has exercised a duty of due care, taken adequate safety measures, and fulfilled the duty of adequate warning; The second element is that the burden of proof shall be borne by the highly dangerous operator.
If the above requirements are met, the application of mitigation of liability shall be considered first, and if the person who enters the high-risk operation area without authorization is grossly negligent for the occurrence of the damage, the high-risk operator shall be exempted from the liability for compensation.
4. Cases
Chen Mouguo et al. v. Sichuan Provincial Expressway Construction and Development Corporation et al., a tort liability dispute
Facts: Chen Mouguo and his wife Yang Mouhua and daughter Chen Mouhua walked into the Chengdu-Ba Expressway section. Yang Mouhua and Chen Mouguo were knocked down by a small ordinary passenger car driven by Tian at the K227+740M section from Chengdu to Bazhong City. Chen Mouguo was injured, and Yang Mouhua died on the spot. The court of first instance held that in this case, the installation of relevant protective warning facilities on the highway in the section where the incident occurred met the design requirements. Highway routes are generally long, and it is not possible to absolutely prevent pedestrians from entering, nor can there be warning signs prohibiting pedestrians in every place and every road section. As the operator of the expressway, Banan Expressway Company has carried out publicity and education on highway traffic safety laws to the masses, persuaded pedestrians to leave when they were found to have entered the expressway, isolated the expressway through corrugated guardrails and other facilities, and set up warning signs prohibiting pedestrians from entering the expressway in some sections. Therefore, it should be determined that Banan Expressway Company has taken the necessary safety measures and fulfilled its warning obligations within a reasonable range. Chen Mouguo and Yang Mouhua, as adults with normal cognitive ability, should know the serious danger and illegality of pedestrians entering the highway lanes, but still deliberately enter the highway to walk, and a traffic accident occurs, and they should bear the losses other than the compensation they have received. The original verdict was upheld in the second instance.
5. Analysis
Two conditions must be met at the same time for the reduction and exemption of liability for harm caused by a highly hazardous area: first, the victim has entered the highly hazardous area without permission. Second, the manager must have taken security measures and fulfilled the warning obligation. Both of these conditions are indispensable. In this case, Chen Mouguo and others entered the expressway on foot, which is a highly dangerous activity area of entering the expressway without permission. In addition to the construction and operators of expressways installing safety facilities such as protective fences and separation fences and establishing pedestrian culverts to facilitate pedestrian traffic, requiring builders and operators to set up warning signs along the expressway is not clearly stipulated by law, and it obviously exceeds the general consensus of the current society. In this case, Banan Expressway Company has fulfilled its obligations of safety guarantee and warning, and there is no defect in the installation. Therefore, the manager of the expressway, Banan Expressway Company, is not liable for the damage caused by the traffic accident caused by Chen Mouguo and others walking into the expressway without permission.