Article 1170
Where two or more persons commit acts that endanger the safety of others' persons or property, and the conduct of one or more of them causes harm to others, and the specific infringer can be determined, the infringer bears responsibility;
1. The main purpose of this article
This article deals with joint dangerous acts.
II. Evolution of the Provisions
This article follows the provisions of Article 10 of the original Tort Liability Law, which is absorbed from the judicial interpretation. Article 4, Paragraph 1, Item 7 of the Provisions on Evidence in Civil Procedure, which came into effect in 2002, stipulates that "in a tort action for damage caused by a joint dangerous act, the person who committed the dangerous act shall bear the burden of proof that there is no causal relationship between his act and the result of the damage." Article 4 of the 2003 Interpretation on Compensation for Personal Injuries stipulates that: "Where two or more persons jointly commit an act that endangers the personal safety of others and causes harmful consequences, and the actual perpetrator cannot be determined, they shall bear joint and several liability in accordance with Article 130 of the General Principles of the Civil Law." If the actor of the joint danger can prove that the harmful consequences were not caused by his or her conduct, he shall not be liable. The defence of joint dangerous acts set forth in the latter paragraph is not absorbed in the Civil Code.
3. Interpretation of Provisions
This article regulates joint risk and liability.
Joint dangerous conduct refers to the tortious conduct of a majority of two or more persons who jointly carry out an act that is in danger of harming others, causing harm and it is not possible to determine who is the perpetrator. Where the specific perpetrator can be identified, it is not a joint dangerous conduct, and the specific perpetrator is to bear responsibility.
The joint dangerous act is a joint tortious act in a broad sense, which is characterized by: (1) the act is carried out by several persons, not by one person, (2) the jointly committed act has the risk of infringing on others, (3) the joint act with a dangerous nature causes the harmful result and is the cause of the harm, and (4) the harmful result is not caused by the acts of all the jointly dangerous actors, but the specific perpetrator cannot be determined.
Where the above requirements are met, a joint dangerous act is constituted, and all the jointly dangerous actors shall bear joint and several liability to the infringed party. Such joint and several liability shall be carried out in accordance with the rules stipulated in Article 178 of the Civil Code. Among them, each joint perpetrator basically shares the share of responsibility equally, and only when the "market share" is applied, will the ultimate responsibility be borne according to the proportion of the market share. For example, if a certain product causes damage to a person, it is not possible to know who is the perpetrator, and the share of liability can only be determined according to the proportion of products produced by each enterprise in the same period.
4. Cases
Shang Mouwei v. Liu Moulong and other three people, a dispute over compensation for joint infringement of damages that suddenly occurred during play
Facts: Shang Mouwei and Liu Moutao played paper triangles, and Liu Moulong, Zhang Moumin, and Liu Mouhui each smoked a sunflower stalk and beat each other. When Shang Mouwei turned around to watch Liu Moulong and the other three fighting, he was stabbed into his right eye by the oncoming sunflower stalk splinter, and at this time, half of the sunflower stalk in Liu Moulong's hand fell to the ground, and half of it was still in his hand. Because the guardians of Liu Moulong and the other three denied that Shang Mouwei's eye injury was caused by his own children, Shang Mouwei and his guardian filed a lawsuit demanding that Liu Moulong and the other three bear civil liability. The court of first instance held that Shang Mouwei's right eye was stabbed by a flying stab caused by Liu Moulong and the other three people taking sunflower stalks and fighting indiscriminately, and Liu Moulong and the other three interacted with each other and jointly infringed on Shang Mouwei, and the damage result was directly related to the actor's negligent behavior, and should bear civil liability. Both parties are minors, and their guardians shall bear the corresponding responsibility for failing to fulfill their guardianship duties, and the responsibilities shall be equal. The court of second instance held that Shang Mouwei's right eye injury was indeed caused by Liu Moulong and the other three people messing with each other with sunflower stalks, causing the sunflower stalks to break and fly out of the splice and pierce into the eye, and the three were liable for mixed fault, and their guardians should bear the corresponding liability for compensation.
5. Analysis
Shang Mouwei's right eye was stabbed by a flying stab, which was caused by Liu Moulong and the other three people messing with sunflower stalks, but it is impossible to confirm which of the three of Liu Moulong and others finally caused the damage. This circumstance meets the constitutive elements of a joint dangerous act: subjectively, the perpetrator did not have the intent to cause harm, and there was neither common intent nor separate intent among several persons, and there was only joint negligence in negligence of the duty of care. From an objective point of view, there is a possibility that the acts committed by several persons may cause harm to others. The act does not have a specific direction, that is, it is not directed at a specific infringed person, but only inadvertently causes damage to the rights of the victim. In the case of joint dangerous acts, since the specific perpetrator is unknown, the burden of proof of causation is reversed, that is, unless the person involved in the dangerous activity can prove that there is no causal relationship between his act and the damage, the victim should be jointly and severally compensated. Accordingly, Liu Moulong and the other three should be jointly and severally liable for the damage caused by the joint dangerous acts.