Article 1238
If a civil aircraft causes damage to others, the operator of the civil aircraft shall bear tort liability; however, if it can be proved that the damage was intentionally caused by the victim, it shall not be liable.
1. The main purpose of this article
This article is about the liability for damage caused by civil aircraft.
II. Evolution of the Provisions
The earliest legal basis for dealing with liability for damage caused by civil aircraft in mainland China is Article 123 of the original General Principles of the Civil Law, which stipulates that a person who uses a high-speed means of transport to cause damage to another person shall bear civil liability, and if it can be proved that the damage was intentionally caused by the victim, he shall not bear civil liability. According to the provisions, if a civil aircraft, as a means of high-speed transport, causes damage to others, the operator of the civil aircraft shall bear the liability of no fault unless it can be proved that the damage was intentionally caused by the victim. In 1995, the mainland promulgated the Civil Aviation Law, which, in accordance with the original General Principles of the Civil Law and relevant international conventions, combined with the actual situation of the mainland and international practice, made specific provisions on the civil liability of civil aircraft for personal and property damage to passengers and damage to third parties on the ground. Considering the high risk caused by the high speed and high altitude of civil aircraft, article 71 of the original Tort Liability Law stipulates in principle the liability for damage caused by civil aircraft on this basis: "If a civil aircraft causes damage to others, the operator of the civil aircraft shall bear tort liability, but if it can be proved that the damage was intentionally caused by the victim, it shall not be liable." This article follows the provisions of Article 71 of the original Tort Liability Law, with only a few wording modifications, such as "but" being changed to "but". In addition, individual punctuation in it has been modified.
3. Interpretation of Provisions
This article is a provision on the liability for damage to civil aircraft.
Civil aircraft refer to civil aircraft, hot air balloons and other aircraft that have been put into operation with the approval of the relevant state departments. In modern society, once a civil aircraft accident occurs, it will cause serious damage consequences, and the purpose of stipulating this damage liability is to ensure that the victim's damage is remedied.
Civil aircraft damage refers to the damage caused to persons and property on the ground by an accident of a civil aircraft, rather than damage to persons or property carried by the aircraft, such as damage to others caused by an aircraft crash, damage to others caused by falling from an aircraft or throwing of persons or objects or energy, etc. This kind of tort liability is subject to no-fault liability, and the subject of compensation is the operator of the aircraft, and they bear the civil liability for tort.
The constitutive elements of liability for damage to civil aircraft are: (1) an accident occurs in a civil aircraft, (2) personal injury or property damage to a person other than the aircraft is caused, and (3) there is a causal relationship between an accident in a civil aircraft and personal injury or property damage.
With regard to the exemption from liability in the event of an accident involving a civil aircraft, this article only stipulates the victim's willfulness. The Civil Aviation Law has complex provisions on the grounds for exemption from liability for civil aircraft, stipulating that the victim may be exempted from liability for fault, and that liability may be exempted from liability when damage caused by force majeure is exempted, etc., which should be applied by reference.
The liability for damage to civil aircraft is not subject to the rule of offsetting of fault, and even if the victim is grossly negligent or negligent, the liability of the civil aircraft operator cannot be reduced.
4. Cases
Deng Jia et al. v. Shenzhou Sports Club, a dispute over infringement of the right to health
Facts: When Deng Bing drove a two-wheeled motorcycle carrying Deng Jia past the base, he encountered a Robinson R44II civil aircraft preparing to land, so Deng Bing asked Deng Jia to sit in front of him, prop his feet on the two-wheeled motorcycle, and stop and watch on the side of the road outside the base wall. After the Robinson R44II civil aircraft flew over Deng Jia's head, Deng Bing and Deng Jia fell to the ground with the two-wheeled motorcycle, and Deng Jia was injured. A dispute arises between the parties. The court of first instance ruled that Shenzhou Sports Club should bear 70% of the liability for the losses of the plaintiff Deng Jia and others. The court of second instance held that the principle of no-fault liability was applied in this case, and the victim should still bear the burden of proof for the tort, causation, and the fact of damage. In this case, Deng Jia's burden of proof should have reached the standard of making people believe that his fall and injury were more likely to be caused by the wind caused by the helicopter flight, but in fact his evidence did not meet the standard, so his request for Shenzhou Sports Club to bear tort liability lacked factual basis and should be rejected in accordance with law.
5. Analysis
Civil aircraft are highly dangerous, and the principle of no-fault liability shall apply to tort disputes arising from the damage caused by civil aircraft. Therefore, in this case, as the person who used the civil aircraft at the time of the damage, that is, the operator of the civil aircraft, the key to whether Shenzhou Sports Club should bear tort liability lies in whether there is a causal relationship between Deng Jia's injury and the Robinson R44II civil aircraft he used. Due to the special nature of highly hazardous operations, the burden of proof on the victim should not be demanded, but the victim's proof should meet the standard of a high degree of probability. Specifically, in this case, Deng Jia bears the burden of proof for causation. According to the facts of the case, Deng Jia did not prove that the motorcycle lost its balance and fell due to the wind force of the helicopter flight, so the constitutive element of causation has not yet been implemented, and naturally cannot constitute tort liability for harm caused by civil aircraft.