Article 1169
Those who instigate or assist others in committing tortious acts shall bear joint and several liability with the perpetrators.
Those who instigate or assist a person who lacks or has limited capacity for civil conduct to commit tortious acts shall bear tort liability;
1. The main purpose of this article
This article is about the instigation and assistance of others in infringing and their liability.
II. Evolution of the Provisions
The original General Principles of the Civil Law only provided for the rules for liability for joint infringement in the narrow sense, and did not stipulate how civil liability should be borne for joint infringement in the broad sense, such as instigating and aiding others, or for other types of infringement by the majority. Article 148 of the original Opinions on the General Principles of the Civil Law for the first time stipulates the rules for the bearing of civil liability for instigating or aiding others in infringement, filling a legal gap. This article divides the acts of instigating or aiding others to infringe on the infringement of rights into three levels, and stipulates that "a person who instigates or assists others to commit infringements shall be joint tortfeasors and shall bear joint and several civil liability." "A person who instigates or assists a person who lacks capacity for civil conduct to commit an infringing act is an infringer and shall bear civil liability. "A person who instigates or assists a person with limited capacity for civil conduct to commit a tortious act is a joint tortfeasor and shall bear primary civil liability. That is, according to the three circumstances in which the instigator is a person with full capacity for civil conduct, a person with no capacity for civil conduct, or a person with limited capacity for civil conduct, three different forms of liability are respectively stipulated: joint and several liability, the sole liability of the instigator or helper, and the instigation and helper bear the main responsibility internally on the premise of bearing joint and several liability externally. The original Tort Liability Law critically inherited this rule in the judicial interpretation, and introduced into the norms the liability of guardians when the instigator or aider is a person with no or limited civil capacity, and further improved the rules on the liability for instigating and aiding others in infringement. Article 9 of the original Tort Liability Law stipulates that: "A person who instigates or assists others to commit tortious acts shall be jointly and severally liable with the perpetrator." "Whoever instigates or assists a person who lacks or has limited capacity for civil conduct to commit a tortious act shall bear tort liability; "The original Tort Liability Law does not distinguish whether the instigator is a person with no or limited capacity for civil conduct, and uniformly handles the situation of instigating or aiding a person with no or limited capacity for civil conduct in the rules for bearing responsibility, that is, in principle, the instigator or helper bears civil liability; The provisions of this article of the Civil Code also completely inherit the provisions of Article 9 of the original Tort Liability Law, and only amend the phrase "failure to fulfill guardianship responsibilities" to "failure to fulfill guardianship duties" in paragraph 2, which is more accurate.
3. Interpretation of Provisions
This article stipulates the responsibility of instigators and aiders.
The instigator or aider is the person responsible for the joint and intentional joint tortious act, including the perpetrator, the instigator and the aider. The liability rules set forth in this article for instigators and aiders of joint infringement are divided into different rules for instigating and aiding others, instigating and aiding persons without civil capacity, and instigating or assisting persons with limited civil capacity to commit tortious acts.
In the case of joint tortfeasors constituted by joint intent, the infringer has different identities as the perpetrator, the instigator and the aider. The rules for the instigator and aider to bear joint and several liability for infringement are:
(1) Instigating or aiding a person with full capacity for civil conduct: The instigator is the person who creates the intention and puts forward the claim of committing the tortious act, and the instigator bears the same liability as the perpetrator; The responsibilities assumed are joint and several liability.
(2) Instigating or aiding a person without capacity for civil conduct: If a person without capacity for civil conduct is instigated to commit a tortious act, the instigator is the tortfeasor, and the guardian of a person without capacity for civil conduct shall not be liable if he is not negligent. Where a person who is assisted in carrying out a tortious act is assisted by a person who lacks capacity for civil conduct, the helper shall be a joint tortfeasor, and where the guardian is negligent, the helper shall bear the main tort liability.
(3) Instigating or aiding a person with limited capacity for civil conduct: If a person with limited capacity for civil conduct is instigated to commit a tortious act, the instigator shall be a joint tortfeasor; Where a person with limited capacity for civil conduct is assisted in committing a tortious act, the helper is a joint tortfeasor, and where the guardian is negligent, both parties bear equal responsibility.
In the first case, the instigator or aider bears joint and several liability. In the second case, if the instigator or the person who instigates the person without civil capacity to commit the tortious act shall be liable alone; if the person who assists the person without civil capacity or instigates or assists the person with limited civil capacity to commit the tortious act, the liability borne by the instigator or helper is one-way joint and several liability, which is called mixed liability under American law, that is, the instigator and the helper bear joint and several liability, and the guardian only bears the corresponding liability - the infringed party may request the instigator or helper to bear full liability, and then the instigator, Where the infringed party claims that the guardian bears responsibility, the guardian shall only bear the share liability and shall not bear joint and several liability.
4. Cases
Ji Mouquan v. Wang Mouyun, a dispute over compensation for property damages
Facts: Ji Mouquan and Chen Mouming, who are not involved in the case, partnered to operate a color steel factory, and Chen Mouming, in order to achieve his personal goals, instigated Wang Mouyun to fabricate the fact of ordering goods from Ji Mouquan, and assisted Wang Mouyun twice to extract funds of 190,000 yuan from Ji Mouquan. Hou Ji Mouquan believed that Wang Mouyun and Chen Mouming had partnered to defraud him of his money, and sued the court after unsuccessfully demanding money from Wang Mouyun. The court of first instance held that Chen Mouming, an outsider to the case, instigated Wang Mouyun to fabricate the fact of ordering goods from Ji Mouquan twice in order to obtain funds. Wang Mouyun knew that Chen Mouming had deceived Ji Mouquan, but still helped Chen Mouming fabricate the fact of ordering to obtain funds twice. Wang Mouyun and Chen Mouming's above-mentioned acts are joint tortfeasors, and Wang Mouyun helps others to commit tortious acts, and shall bear joint and several liability with the actors. The court of second instance held that Wang Mouyun clearly knew that Chen Mouming had the intention to defraud Ji Mouquan's funds and cooperated with the completion of the fraudulent act, resulting in the loss of Ji Mouquan's property, and was at fault for the loss, and his fault had a causal relationship with the consequences of the damage, so Chen Mouming was directly liable for repayment, and Wang Mouyun was jointly and severally liable for repayment. Ji Mouquan asked Wang Mouyun to bear the responsibility for repayment first, which was in line with the law.
5. Analysis
This case is concerned with aiding and abetting torts. Article 9 of the Tort Liability Law stipulates the tort liability for instigating or aiding others to commit tortious acts. Article 1169 of the Civil Code follows this provision. Where the instigator or aids others to commit tortious acts, the instigator or aider is also regarded as a joint perpetrator and is liable for all the victim's damages together with the direct perpetrator. The victim does not need to prove the causal relationship between the act of the instigator or aider and the harm, but only needs to prove that there is an act of abetment or aid, so that the instigator or helper and the direct perpetrator can be jointly and severally liable. This is conducive to protecting the legitimate rights and interests of victims. In this case, Wang Mouyun's act of fabricating the fact of ordering constituted Chen Mouming's act of helping to obtain funds to infringe on Ji's property rights, and he, as a joint infringer, should be jointly and severally liable for the property damage of Ji's rights. Wang Mouyun, as the jointly and severally liable person, has the right to recover from Chen Mouming for the part that exceeds his share of liability after assuming all the liability liability to Ji Mouquan.