Article 1172
Where two or more persons separately commit tortious acts and cause the same damage, and the extent of responsibility can be determined, each of them shall bear corresponding responsibility;
1. The main purpose of this article
This article is about the provisions on the liability for separate infringements.
II. Evolution of the Provisions
This article follows the provisions of Article 12 of the original Tort Liability Law, but amends the phrase "equal liability" to "average liability" in the latter. Article 12 of the original Tort Liability Law is based on the provisions of judicial interpretations. Paragraph 2 of Article 3 of the Interpretation on Compensation for Personal Injuries promulgated by the Supreme People's Court in 2003 stipulates that: "Where two or more persons do not have common intent or joint negligence, but several acts carried out by them indirectly combine to produce the same harmful consequence, they shall each bear the corresponding liability for compensation according to the degree of negligence or the proportion of causal force." The "magnitude of the fault or the proportion of causal force" is the method of determining the share of responsibility of each actor.
3. Interpretation of Provisions
This article is a provision for typical separate torts and liabilities.
The typical separate tortious acts are also called "joint acts of inflicting harm without fault connection", which means that the tortious acts carried out by the actors separately cause the same damage result, and the difference between the superimposed separate tortious acts is that the causal forces of the acts carried out by each actor are added together to cause the same damage result, that is, "50% + 50% = 100%". If the causal forces of each actor's act are added up and are not in such a form, it does not belong to the typical separate tort.
The typical liability for separate torts is not joint and several liability, but proportional liability, that is, each actor is only liable for part of the damage caused by his own act, but does not bear full responsibility for the entire damage, that is, "each bears its own responsibility".
Since it is a share liability, it is necessary to determine the size of the share of the liability of each individual tortfeasor. This article provides for two approaches:
(1) If the size of the responsibility can be determined, each shall bear the corresponding responsibility. To be able to determine the magnitude of responsibility is to be able to determine the share that should be borne according to the degree of fault of each person and the causal force of the act.
(2) If it is difficult to determine the size of the liability, the liability shall be borne equally, that is, the liability shall be borne in equal proportion according to the proportion of the number of people.
Between the superimposed separate torts and the typical separate torts, there are also semi-superimposed separate torts, i.e., "100%+50%=100%", and the liability shall be carried out in accordance with the one-way joint and several liability rule, i.e., the mixed liability rule. There are no specific rules in this Part in this regard. Joint and several liability may be borne for the part that overlaps in the proportion of causal force, and the responsibility for the part that does not overlap is borne by the actor himself. For example, both parties shall be jointly and severally liable for 50% of the overlapping ones, and for the 50% that do not coincide, the actor with 100% causal force shall bear the responsibility himself.
4. Cases
Shao Moulin v. Fan Moujun et al., a dispute over the right to life, right to health, and right to body
Facts: Yang was assigned by the cooperative to drive a rotary cultivator to rotate the land for Fan Moujun, Shao Moulin stepped forward to stop him, Fan Moujun negotiated with Shao Moulin and instructed Yang to continue to rotate the land, and when Yang continued to rotate the land, due to poor lookout, the rotary knife injured Shao Moulin's left leg. The court of first instance held that the employment relationship between the employer's cooperative and Yang was one, and that Yang caused damage to Shao Moulin due to the performance of his work tasks, and the employer was liable as an employer. The relationship between Fan Moujun and the cooperative is a contractor, and if the contractor improperly instructs the contractor's staff and causes damage to Shao Moulin, he should also bear the corresponding responsibility. The tortious acts of the two were combined, causing Shao Moulin's damage consequences, with the cooperative bearing 70% of the liability and Fan Moujun bearing 30% of the liability. The court of second instance held that Yang bore the main responsibility in the accident, and the original trial court found that 70% was not improper. This responsibility is borne by the employer's cooperative. The relationship between the cooperative and Fan Moujun is a contractor. Fan Moujun was only responsible for indicating the boundary of cultivated land to Yang, and did not give instructions on how Yang would operate the machine, and there was no improper instruction. However, Fan Moujun failed to fulfill a reasonable duty of care for Shao Moulin's personal safety, and assumed 10% responsibility as appropriate. Shao Moulin should be able to predict the danger of approaching the rotary tiller at close range, and he is at fault and bears 20% of the responsibility.
5. Analysis
In this case, the main reason for the damage caused by Shao Moulin was that Yang was inattentive when operating the rotary tiller. However, if Fan Moujun, as the customizer, reminded Yang in time when he operated the rotary tiller and informed him of Shao Moulin's location, Yang would not have injured Shao Moulin during the operation. Therefore, Fan Moujun, as the author of the order, had improper instructions, and there was a causal relationship between the improper instructions and the damage, so Fan Moujun should also bear the corresponding tort liability. In detail, in this case, the combination of Fan's improper instructions and Yang's improper operation jointly caused Shao Moulin's disability. Therefore, the infringer should bear the share liability, and its share of liability should be consistent with the causal force of its fault for the damage result. In this case, Yang's improper operation was the main reason, and Fan's improper instructions were the secondary reason. As a staff member, Yang's employer bears vicarious liability.