Article 1168
Where two or more persons jointly commit tortious acts, causing harm to others, they shall bear joint and several liability.
1. The main purpose of this article
This article deals with joint tortfeasance and the form of liability.
II. Evolution of the Provisions
Article 130 of the original General Principles of the Civil Law stipulates that: "Where two or more persons jointly infringe and cause damage to others, they shall be jointly and severally liable." This provision does not reveal the constitutive elements of "joint infringement", which has caused a series of controversies in the application of law. Article 8 of the original Tort Liability Law stipulates that "if two or more persons jointly commit tortious acts and cause damage to others, they shall be jointly and severally liable." In terms of the form of liability, the provisions of Article 130 of the original General Principles of the Civil Law are continued, but the phrase "joint infringement causes damage to others" is amended to "joint infringement and causes damage to others", which contrasts with the expression "two or more persons separately commit tortious acts and cause the same damage" in Article 11, which seems to emphasize "joint infringement" There should be unity in the constitutive elements, and this unity should be subjective unity, that is, the multiple subjects (two or more) infringers have subjective intent contact, while article 11 emphasizes objective unity, that is, the acts have related commonality. Article 1168 of the Civil Code stipulates that the provisions of Article 8 of the original Tort Liability Law are followed, which is the inheritance and affirmation of the legislative achievements of the original Tort Liability Law on the composition of the elements of joint infringement and the form of liability.
3. Interpretation of Provisions
This article regulates joint tortfeasors and liability.
Joint tortfeasor refers to the tortious act of a majority of persons who jointly commit the tortious act based on subjective or objective contact with each other, causing damage to others, and shall be jointly and severally liable for compensation. Where joint infringement is constituted, the perpetrators shall be jointly and severally liable for compensation.
The constitutive elements of joint tort liability are: (1) the actor is two or more actors, (2) there is a common connection between the actors, or there is a subjective connection with each other, that is, a connection of intentions, or an objective connection with each other, (3) the damage caused by the infringed party is inseparable, and (4) there is a causal relationship between the acts of each actor and the damage.
Where the above constitutive elements are met, the joint tortfeasors shall bear joint and several liability.
There is a difference between subjective and objective theories in determining joint infringement. The subjective theory requires that the joint tortfeasors have common intent or joint negligence subjectively, and the objective theory holds that the joint tortfeasors do not have subjective intent to communicate, but have objective connections and are jointly related, can also constitute joint infringement. The legislator adopted a limited objective doctrine, i.e., joint intent constitutes joint infringement, joint negligence also constitutes joint infringement, and joint infringement can also be constituted without joint intent and joint negligence. It is more objective and accurate to adopt the theory of joint association, that is, if the joint actor has subjective joint association, that is, common intent, or objectively related common, that is, the actor's behavior is directed to a specific object, and each person's behavior is the common cause of the occurrence of the harm, causing the same harmful result, and the damage is inseparable, all constitute joint infringement.
If joint infringement is constituted, the joint tortfeasor shall bear joint and several liability, and the rules stipulated in Article 178 of the Civil Code shall apply: (1) the infringed party may claim all intermediate liability from any actor. (2) The ultimate liability shall be shared proportionally by each joint tortfeasor according to the degree of fault and the causal force of the act. (3) The actor who bears more than his share of responsibility has the right to exercise the right of recourse against the actor who does not bear the responsibility or does not bear the responsibility for the insufficient share of the claim, so as to realize the ultimate responsibility.
4. Cases
Li Mouwei v. Gao Mousheng et al., a case of body rights dispute
Facts: Gao Mouqi was grazing sheep in the Yinzhou District pet market operated by Li Mouwei without permission, Li Mouwei and Gao Mouqi had a quarrel, Li Mouwei first beat Gao Mouqi, and then Gao Mouqi called his parents Gao Mousheng and Liu Mouping, Gao Mouqi and other three people fought with Li Mouwei, and Gao Mouqi and other three people injured Li Mouwei. The court of first instance held that the cause of this case was that Gao Mouqi was grazing sheep in the pet market operated by Li Mouwei without permission, and then the two parties had a quarrel, and Gao Mouqi and the other three injured Li Mouwei, so Gao Mouqi and the other three should bear the main responsibility, Li Mouwei first beat Gao Mouqi in this incident, and should bear secondary liability, Gao Mouqi and the other three are joint infringement, and should bear joint and several liability for compensation, and jointly and severally compensate Gao Mouqi for 80% of the loss. The court of second instance held that although the cause of this case was that Gao Mouqi was grazing sheep in the pet market operated by Li Mouwei without permission, Li Mouwei's behavior of beating Gao Mouqi first was the main reason for the consequences of this case. Therefore, it was adjusted that Gao Mouqi and the other three should bear 60% of the responsibility.
5. Analysis
In this case, Gao Mouqi and the other three were the tortfeasors, and their tortious acts were typical acts of joint harm, and they should be jointly and severally liable for the damage consequences of the infringed party. There are two ways to determine the share of compensation for each jointly and severally liable person: one is the equal apportionment method, that is, unless otherwise provided by law or otherwise agreed by the parties, the internal share of the jointly and severally liable persons is equal, and the other is the comparative apportionment method, that is, the respective share of compensation is determined according to the fault and causal force of each tortfeasor. In this case, Gao Mouqi and the other three people, as joint tortfeasors, fought together with the infringed party Li Mouwei and eventually injured him, so the fault and causal force of the damage result of the infringed person Li Mouwei are roughly the same, and the share of liability should be determined according to the equal apportionment method.