Article 1175
If the damage is caused by a third party, the third party shall bear tort liability.
1. The main purpose of this article
This article deals with the liability of a third party when the act of that third party causes damage.
II. Evolution of the Provisions
The provision on third-party fault was first found in the original General Principles of the Civil Law, which did not stipulate the general rules for third-party torts, but mentioned the relevant concepts in two articles. Article 122 of the original General Principles of the Civil Law stipulates that "if the transporter or warehouse is liable for this, the product manufacturer or seller shall have the right to claim compensation for losses". Article 127 of the original General Principles of the Civil Law stipulates that: "...... Where damage is caused by the fault of a third party, the third party shall bear civil liability. This is a clear provision on the liability of a third party, which is limited to the third party in the liability for damage to the breeding of animals, and the animal keeper or manager is exempted from liability.
For example, paragraph 4 of Article 96 of the Water Pollution Prevention and Control Law stipulates that "if the damage caused by water pollution is caused by a third party, the polluter shall have the right to recover compensation from the third party after assuming the liability for compensation." Paragraph 1 of Article 89 of the Marine Environmental Protection Law stipulates: "The person responsible for causing damage to marine environmental pollution shall eliminate the harm and compensate for the loss; Paragraph 3 of Article 60 of the Electricity Law stipulates that: "Where damage is caused to an electric power enterprise or other user due to the fault of a user or a third party, the user or third party shall be liable for compensation in accordance with the law." "These provisions on third-party tort are all made for specific special tort liability, focusing on product liability, animal damage liability, water pollution liability, marine environmental pollution liability and electricity damage liability. The main consequence is to exempt the actual perpetrator from liability and let a third party bear the responsibility, and there are also a few provisions that do not apply joint and several liability.
Article 28 was added from the first and second drafts of the Tort Liability Law to provide for the infringement of third parties, and Article 28 was added from the third draft until it was finally passed into law, becoming the legal norm for the infringement of third parties in the mainland. Article 28 of the original Tort Liability Law stipulates the general rule of third-party fault in the form of general provisions, making it universally applicable in Tort Liability Law. At the same time, Articles 37, 40, 68 and 83 of the original Tort Liability Law respectively provided for special rules on third-party fault. This article follows the provisions of Article 28 of the original Tort Liability Law, and makes general provisions on the fault of a third party, and the third party's act has all or part of the causal force for the harmful consequences, which may constitute a cause for the defendant's exemption or reduction of liability. However, where the law has special provisions, the special provisions shall apply. For example, Article 1192, Paragraph 2, Article 1198, Paragraph 2, Article 1201, Article 1204, Article 1233, Article 1250, etc., of the Civil Code all provide special provisions on the fault of third parties, so this provision does not apply.
3. Interpretation of Provisions
This article is about the exemption of liability for damage caused by a third party.
Third-party causes, also known as third-party faults, refer to the exemption that the victim and the perpetrator are not at fault for the occurrence of the damage, and the victim's damage is entirely caused by the fault of the third party, and the third party shall bear tort liability. If the cause of the third party has partial causal force for the occurrence of the damage, it is a cause for mitigation.
The characteristics of the third-party cause are: (1) the subject of fault is the third party, (2) there is no fault connection between the third party and the parties, especially the actor, (3) the fault of the third party is the entire cause of the damage, and (4) it is the cause of exemption, and the actor is not liable.
Where it is established that a third party is at fault for the occurrence or expansion of the harm and has full causal force, the consequence is to exempt the perpetrator from responsibility.
The reason for a third party as a cause for exemption from liability is a general cause for exemption, but where the law has special provisions, special provisions shall apply. For example, Article 1198, paragraph 2, Article 1204, Article 1233, Article 1250, etc., of the Civil Code all provide for special rules on third-party causes, and therefore this article does not apply.
4. Cases
Jia Mourong v. Chai Mouyue, a dispute over the right to life, right to health, and right to body
Facts: Jia Mourong's son Jia Mourong worked as a hook truck driver in Chai Mouyue before his death. Jia was killed when he got out of the car to check on the wood after loading wood with a hook machine, and was hit by a truck loaded with wood driven by Liu. Jia Mourong filed a lawsuit with the court, claiming that Chai Mouyue was liable as an employer. The court of first instance held that Jia's death was caused by a third party, Liu, and that the third party, Liu, was at fault for Jia's death and should be liable for compensation. The third party, Liu, has reached an agreement with Jia Mourong on compensation for Jia's death, and the compensation is completed, and Chai Mouyue is exempted from responsibility, so Jia Mourong has no direct interest in this case and does not meet the conditions for prosecution. The court of second instance held that if a third party outside the employment relationship causes personal injury to an employee, the person entitled to compensation may request the third party to bear the liability for compensation, and may also request the employer to bear the liability for compensation. After the employer assumes the liability for compensation, it can recover from a third party. Jia Mourong, the compensation right holder, reached an understanding agreement with Liu, and has obtained compensation from the direct infringer Liu. Now Jia Mourong is claiming compensation from Chai Mouyue, but there is no legal basis, so it is not supported.
5. Analysis
In the case of damage caused by a third party, should the liability of the perpetrator be completely exempted? In our view, the cause of a third party only applies to the situation where the liability of the actor is completely exempted, that is, the cause of the third party is the only cause of the damage. In this case, although there was an employment relationship between Jia, the son of Jia Mourong, and Chai Mouyue, Jia's death was essentially caused by the collision of a truck driven by a third party, Liu, and this reason was the only cause of Jia's death, and the causal relationship between Chai's employment behavior and the damage result of Jia's death was interrupted by the third party Liu's behavior. It can be seen that Chai did not commit infringement in a certain month, so he did not need to bear tort liability. Jia Mourong can only ask the third party, Liu, to bear tort liability. In fact, Jia Mourong and Liu have reached an agreement, according to which the direct infringer Liu has borne the liability for compensation, and Jia Mourong has waived his criminal liability and civil liability. According to the principle of good faith, Jia Mourong could not file a separate lawsuit with Liu as the defendant to demand that he bear tort liability.