Article 1165
Where the perpetrator infringes upon the civil rights and interests of others and causes harm due to his fault, he shall bear tort liability.
Where it is presumed that the actor is at fault in accordance with the provisions of law, and he cannot prove that he is not at fault, he shall bear tort liability.
1. The main purpose of this article
This article is about the principle of fault liability and the presumption of fault liability.
II. Evolution of the Provisions
Paragraph 2 of Article 106 of the original General Principles of the Civil Law, promulgated in 1986, stipulates: "Citizens and legal persons who infringe upon the property of the State or the collective, or the property or person of others due to their fault, shall bear civil liability." This provision establishes that the principle of attribution of general tort in the tort liability law of the mainland is the principle of fault liability. Article 6 of the original Tort Liability Law stipulates that "an actor who infringes upon the civil rights and interests of others due to his fault shall bear tort liability." Where the perpetrator is presumed to be at fault in accordance with the provisions of law, and the perpetrator cannot prove that he is not at fault, he shall bear tort liability. This provision is the inheritance and development of the second paragraph of the original Article 106 of the General Principles of the Civil Law, that is, it reiterates the principle of attribution of general tort liability as the principle of fault liability, and at the same time, in paragraph 2, it also provides for the special form of the principle of fault liability, that is, the presumption of fault liability, and improves the content of the principle of fault liability. However, there are also shortcomings in this provision: first, according to the provisions of Article 15 of the original Tort Liability Law, there are eight ways to bear tort liability, among which the three modes of liability of "stopping the infringement, removing the obstruction, and eliminating the danger" are absolute claims in nature, and the infringement can be established and bear the tort liability without the infringer's fault, so the provisions of Article 6 are based on the principle of "fault" as the attribution principle, which is not enough to cover the above three types of liability. Second, the principle of attribution also lacks the elements of harmful consequences, stipulating that tort liability shall be borne for infringement of civil rights and interests due to fault, but only stipulates the consequences of infringement of rights and interests but not the consequences of damage caused by infringement of rights and interests, resulting in "damages", which is one of the main ways to bear tort liability, cannot be covered within the scope of this provision because the elements are incomplete, so this provision is logically inadequate. In the process of compiling tort liability in the Civil Code, there were opinions that the provisions of Article 6 of the original Tort Liability Law on fault liability were incomplete, and suggested that the expression of the consequences of tort acts should be supplemented, and the Draft of the Civil Code on Tort Liability (Second Draft) adopted this suggestion and made important adjustments to the provisions of Article 6 of the original Tort Liability Law, that is, the generalized tort liability method was incorporated into Article 179 of the "Civil Liability" chapter of the General Provisions as a whole, and the tort liability was changed to "damages" Liability is the basic form and core content of the provisions of the tort liability system in the narrow sense, and accordingly, the elements of damage result are stipulated in the general provisions of the principle of fault liability, which logically and systematically improve the provisions of the principle of attribution of tort liability, and finally embodied in this provision.
3. Interpretation of Provisions
This article stipulates the principle of fault liability, the principle of presumption of fault and the constitutive elements of general tort liability.
The principle of fault liability is the general principle of attribution of tort liability, which has three functions: (1) to determine the adjustment of the principle of fault liability to general tort acts, with the basic requirement that the actor is at fault, and those who are not at fault are not liable. (2) General torts, i.e., torts that are not specifically provided for in Chapters 3 to 10 of Part VII of the Civil Code, "Tort Liability", shall be determined by the principle of fault liability. (3) The provisions of the principle of fault liability include the right to claim, and the claimant may directly sue in accordance with the provisions of paragraph 1 of this article, and the judge shall make a judgment accordingly.
In essence, the principle of presumption of fault is still the principle of fault liability, but the elements of fault are presumed rather than determined, so in the case that the other constituent elements are proved to be established, the judge can directly presume that the actor is at fault, and if the actor believes that he is not at fault, he or she shall provide evidence to prove it, and those who can prove it are exempted from liability, and those who cannot prove it or prove that it is insufficient are liable. Paragraph 2 of this article does not provide for a claim, and the specific provisions on the application of the principle of presumption of fault shall be the basis for the claim.
The constitutive elements of general torts to which the principle of fault applies and some special torts to which the principle of presumption of fault applies: (1) illegal acts, (2) facts of damage, (3) causal relationship, and (4) fault. The fault elements of general tort liability applying the fault principle must be proved by the infringed party, and the fault elements of special tort liability applying the principle of presumption of fault shall be presumed, and the infringed party shall be responsible for proving the elements of illegal acts, damage facts, causal relationships, etc.
4. Cases
Meng Mouyuan v. Yu Mouhua, a dispute over the right to life, right to health, and right to body
Facts: When 87-year-old Meng Mouyuan walked to the community road between Buildings 10 and 11 of XX New Town on the way home, Yu Mouhua was dragging his own dog, and when he turned around, he accidentally scraped Meng Mouyuan behind him and injured him. Later, Meng Mouyuan filed a lawsuit, demanding that Yu Mouhua compensate for medical expenses, nursing expenses, hospital meal subsidies, transportation expenses, disability subsidies, spiritual solace funds, judicial appraisal fees, and litigation mailing fees. The court of first instance held that although Yu Mouhua accidentally scraped Meng Mouyuan down and injured him, he was negligent, and he was at fault for the injury suffered by Meng Mouyuan, and should bear tort liability. Meng Mouyuan, as a person with full capacity for civil conduct, should have a certain duty of care for her own safety, and should reduce Yu Mouhua's tort liability as appropriate, and a 10% reduction is appropriate. The court of second instance held that although Yu Mouhua was negligent, he should also bear the tort liability of compensating for the reasonable economic losses caused by Meng Mouyuan's injury. Meng Mouyuan, as a person with full capacity for conduct, should pay attention to the possible dangers around him in order to fulfill his duty of reasonable prevention for his own safety when he bent over and dragged his own puppy, and it was not improper to decide in the first instance that Yu Mouhua should bear 90% and Meng Mouyuan should bear 10%.
5. Analysis
Article 106, Paragraph 2 of the General Principles of the Civil Law, Article 6 of the Tort Liability Law and Article 1165 of the Civil Code all clearly stipulate the basic status of the principle of fault liability in tort law. The principle of fault liability recognizes in the form of a general principle that any person who has been infringed by the fault of others has the right to obtain legal remedies, therefore, the scope of application of tort law has been greatly expanded, and the rights and interests of victims have also been fully protected: not only absolute rights such as property rights and personality rights are protected by tort law, but also relative rights and some personal and property interests are also protected by tort law. This case is a typical case of personality rights infringement, the infringed civil rights and interests are the right to health, and the infringed party has suffered mental suffering, so the infringer should be liable for damages according to the principle of fault liability.