Article 1173
Where the infringed party is at fault for the occurrence or expansion of the same harm, the infringer's liability may be reduced.
1. The main purpose of this article
This article is about the principle of negligence in tort liability.
II. Evolution of the Provisions
The basic civil law basis for the principle of negligence in mainland China is Article 131 of the original General Principles of the Civil Law. According to this article, "if the victim is also at fault for the occurrence of the damage, the civil liability of the infringer may be reduced". Article 11 of the Interpretation on Compensation for Moral Damages (Fa Shi [2001] No. 7) stipulates that "if the victim is at fault for the occurrence of the facts of the damage and the consequences of the damage, the tortfeasor's liability for compensation for moral damages may be reduced or exempted according to the degree of his fault", and Article 2 of the Interpretation on Compensation for Personal Injuries (Fa Shi [2003] No. 20)[3] provides that "the victim has the intention to cause or expand the same damage. In the case of negligence, the liability of the person liable for compensation may be reduced or exempted in accordance with the provisions of Article 131 of the General Principles of the Civil Law. However, if the infringer causes damage to others intentionally or through gross negligence, and the victim is only generally negligent, the liability of the person obligated to pay compensation shall not be reduced. Paragraph 3 of Article 106 of the General Principles of the Civil Law stipulates that when determining the liability of the indemnity obligor, if the victim is grossly negligent, the liability of the indemnity obligor may be reduced", on the basis of Article 131 of the original General Principles of the Civil Law, the scope of application and standards of the principle of negligence offsetting are explained, and the construction of the principle of negligence offsetting in the mainland is preliminarily completed. Article 26 of the original Tort Liability Law also continues this principle: "If the infringed party is also at fault for the occurrence of the damage, the liability of the infringer may be reduced." On this basis, the Road Traffic Safety Law, the Water Pollution Prevention and Control Law, the Civil Aviation Law, and the judicial interpretations issued by the Supreme People's Court on the trial of disputes over compensation for personal injuries in railway transport, ship collision and collision cases, tourism disputes, and state compensation cases involving tort liability also make relevant provisions on the principle of negligence. This article inherits and continues the provisions of the Basic Civil Law and judicial interpretations.
This provision further expands on Article 26 of the original Tort Liability Law. Comparing the two articles, there are two main changes: First, the tort liability section of the Civil Code limits the damages, and the damage must be "the same" in order for this article to apply. The understanding of "sameness" is the same in a law, which means that both the infringer and the infringed are liable for the occurrence of a damage result of the same nature. The main reason for this amendment is that in practice, different courts have different understandings and applications of Article 26 of the original Tort Liability Law, and in order to maintain the uniformity of judicial adjudication, there should be some limitations. The second is to increase the "amplification" of damage. In the expression "the occurrence of damage by the infringed party" in Article 26 of the original Tort Liability Law, the occurrence contains the meaning of enlargement, and the expansion is a subsequent damage, a new damage, and a form of damage, and this point must be clearly understood in a correct understanding of the provisions of the original Tort Liability Law. In the process of compiling the Civil Code, some opinions have suggested that the scope of damage is not determined immediately after it has occurred, but may change over time. Victims may breach their unreal obligations to themselves at all stages from the occurrence of the damage to the widening of the scope of the damage, so the scope of application of the victim's fault system should not be limited to the occurrence of the damage, but also include the expansion of the damage. After research, the tort liability section of the Civil Code separates "expansion" from "occurrence of damage". If the infringer has caused damage, and the infringed party causes the same damage to expand due to its own reasons, the infringer's liability may be reduced for the enlarged part.
3. Interpretation of Provisions
This article regulates the rules of negligence and negligence.
Continental tort law used to refer to negligence as mixed fault, but this expression was abandoned because it was inaccurate. Negligence refers to the occurrence or expansion of the same damage, not only the infringer is negligent and causal, but also the infringed party is also negligent and causal, which is a situation where the negligent acts of both parties cause the same damage result.
The consequence of negligence is negligence. The so-called offsetting means that the perpetrators are each responsible for the consequences of their own acts. Among them, the first comparison is the degree of negligence of each individual, and the second is the magnitude of the causal force, and if the fault cannot be compared under the principle of no-fault liability, the magnitude of the causal force of the act is directly compared. According to the degree of negligence and the degree of causal force, the proportion of liability that the infringer should bear shall be determined, and the infringed party shall bear the other part of the damage caused by the infringed party's own reasons.
According to the comparison of the offsetting of faults, the consequences of liability are:
(1) If the degree of negligence and causal force are the same, they shall bear the same liability (50%).
(2) If the degree of negligence and causal force of the infringer's behavior are greater than that of the infringed party, the infringer bears the main liability (more than 51%).
(3) If the degree of negligence and causal force of the infringer are less than those of the infringed party, the infringer shall bear secondary liability (less than 49%).
4. Cases
Zhu won the personal injury compensation dispute case against Shiping Company
Facts: Zhu Mousheng is an employee of Fubon Gas Ventilation Point under WPI Company, and after Fubon Gas Point ceased operation, Zhu Mousheng personally engaged in the business of picking up and dropping liquefied gas tanks. One day, when Zhu Mousheng was waiting for business at the ventilation point of the Land Bureau under the WPI Company, Qian Mouying, a customer of WPI Company, asked to send someone to repair his liquefied gas cylinder. Zhu Mousheng went to the customer's home for repairs, and accidentally burned in a combustion accident during maintenance. After trial, the court held that Zhu Mousheng was waiting for personal business at the ventilation point of the Land Bureau under the WPI Company, which was not providing labor services for WPI Company, and did not constitute an employment relationship, but a helper relationship. Where a helper suffers personal injury as a result of helper activities, the aided worker shall be liable for compensation. Zhu Mousheng was indeed injured in a liquefied gas combustion accident in the process of repairing a customer of WPI, that is, Zhu Mousheng's personal injury had a causal relationship with WPI's help. Therefore, WPI Company should be liable for the personal injuries suffered by Zhu Mousheng as a result of the helper. During the maintenance process, Zhu Mousheng caused a liquefied gas combustion accident due to improper operation, and he was negligent, which can reduce the liability of the World Ping Company, and the liability of the World Ping Company shall be determined to be 50% of Zhu Mousheng's total losses.
5. Analysis
Negligence essentially means that the damage suffered by the victim is caused by the combination of the fault of the perpetrator and the fault of the victim, or that the victim is at fault after suffering the damage, resulting in the further expansion of the damage. The negligence of the victim means that the victim fails to take reasonable care or available precautions to protect his body, property and other rights and interests from harm, so that he or she suffers damage from others or further causes the damage to be magnified after suffering damage to others. In this case, Zhu Mousheng was injured in a liquefied gas combustion accident in the process of repairing a customer of WPI, that is, Zhu Mousheng's personal injury had a causal relationship with the tools he helped for WPI, so WPI Company should be liable for compensation for the personal injury suffered by Zhu Mousheng as a helper. However, in the process of helping the worker, Zhu Mousheng improperly operated the liquefied gas cylinder, which caused a liquefied gas combustion accident and eventually caused him to suffer personal injury. It can be seen that the plaintiff's own improper operation constitutes negligence, which can reduce the tort liability of WPI.