Partnership Guide | Author: Li Li
This is the 920th text of Li Li's blog and partnership guide public account
"Talking about the Civil Code Series" is a note by lawyer Li Li who read the Civil Code
Talk about Civil Code 145: The Civil Code stipulates which tort liability applies to the presumption of fault
Title VII Liability for Infringement
The tort liability section of the Civil Code is revised and supplemented on the basis of the original Tort Liability Law of the People's Republic of China and relevant judicial interpretations. There are still many substantive modifications.
Chapter I General Provisions
Article 1164:This Part regulates civil relationships arising from infringement of civil rights and interests.
The Scope of Adjustment of Title VII in the Civil Code is legislated in a general manner, including all civil relationships arising from infringement of civil rights and interests.
All civil rights and interests, that is, the civil rights stipulated in Chapter V of the General Provisions of Part I of the Civil Code, that is, the "rights and interests" of personality rights, identity rights, property rights, creditor's rights, intellectual property rights, inheritance rights and equity rights and other investment rights.
"Rights" includes the dual meanings of "rights" and "interests". This also means that some civil interests that are not rights are also protected by the Tort Liability Section.
According to the law, creditor's rights are also civil rights and interests, but when dealing with disputes over infringement of creditor's rights, the legal rules of creditor's rights and debts are first applied to deal with, and if the legal rules of creditor's rights and debts can be applied to deal with smoothly, there is no need to apply the legal rules of tort liability. The case of the Shanghai No. 1 Intermediate People's Court (2013) Huyi Zhongmin Liu (Shang) Zai Zhong Zi No. 1 Civil Judgment is a case of infringement of creditor's rights handled by the court applying the tort liability rules. The parties to the case were dissatisfied with the final judgment and later appealed to the procuratorate. On November 22, 2013, the Shanghai Municipal People's Procuratorate rendered a civil protest against the Shanghai Municipal Higher People's Court in its Civil Protest (2013) No. 53. The Shanghai Municipal Higher People's Court made a civil ruling to arraign the case. The Shanghai Municipal Higher People's Court wrote in the civil judgment on the retrial of the case:
This court held that on May 19, 2004, Puxin Company submitted an application for property preservation to the Shanghai No. 1 Intermediate People's Court in connection with its lawsuit against Company A and other entrustment contract disputes, requesting the seizure or freezing of Company A's assets. After the Shanghai No. 1 Intermediate People's Court made a litigation preservation ruling in accordance with the law, BOCI was obliged to assist the Shanghai No. 1 Intermediate People's Court in adopting preservation measures, but BOCI repeatedly revoked the designated transactions and handled the designated transactions in violation of the law repeatedly without the entrustment of the asset rights holder of the disputed stock account, Company A, and refused to assist the Shanghai No. 1 Intermediate People's Court in taking property preservation measures. During this period, the Securities Business Department of BOCI Shanghai Guangyuan West Road submitted an application for property preservation to the Shanghai No. 2 Intermediate People's Court in its case against Company A and other entrustment contract disputes, and after the Shanghai No. 2 Intermediate People's Court approved property preservation in accordance with its application, it immediately designated most of the disputed stocks to be illegally designated to the BOC International Shanghai Ouyang Road Business Department to facilitate property preservation measures, resulting in the disputed shares being taken by the Shanghai No. 2 Intermediate People's Court to take litigation preservation measures, and then being seized by the Lanzhou Railway Public Security Bureau. In this regard, the Letter issued to the Court by the Executive Board of the Supreme People's Court in May 2009 also held that BOCI's conduct constituted an act of refusing to assist the Court in enforcement. BOCI's refusal to assist the Shanghai No. 1 Intermediate People's Court in adopting preservation measures resulted in the inability to enforce the effective civil mediation document in the dispute between Puxin Company and Company A in the entrustment contract dispute, and Puxin Company's creditor's rights and interests were not fully repaid, and its property rights and interests were damaged. There is a causal relationship between BOCI's refusal to assist the court in enforcement and the result of damages that Puxin Company's claims cannot be fully realized, so BOCI should bear the liability for tortious damages of Puxin Company.
Article 1165:Where the perpetrator infringes upon the civil rights and interests of others due to fault and causes harm, he shall bear tort liability.
Where it is presumed that the perpetrator is at fault in accordance with the provisions of the law and cannot prove that he is not at fault, he shall bear tort liability.
This article includes: the principle of fault liability, the principle of presumption of fault liability.
The principle of presumption of fault liability is, in essence, still the principle of fault liability, except that the element of "fault" is presumed according to the provisions of the law.
Fault liability is the most important and basic principle of attribution of tort liability.
In the expression of fault liability, the first paragraph of this article is supplemented by the provisions of the original Tort Liability Law. The expression in article 6 of the original Tort Liability Law is that "the perpetrator shall bear tort liability for infringing on the civil rights and interests of others due to fault." The addition of "causing damage" to this article of the Civil Code is consistent with the long-standing academic and practical consensus, that is, the four elements of tortious fault liability: fault, infringement, damage consequences, and causation.
In the "Tort Liability" part of the Civil Code, the tort of "presumption of fault liability" stipulated in the Civil Code has the following provisions:
Article 1199:Where a person without capacity for civil conduct suffers personal injury during his study or life in a kindergarten, school or other educational institution, the kindergarten, school or other educational institution shall bear tort liability; however, where it can be proved that he has fulfilled his educational or management duties, he shall not bear tort liability. Article 1222:Where a patient suffers damage in the course of diagnosis and treatment activities, and there are any of the following circumstances, the medical institution is presumed to be at fault: (1) violating laws, administrative regulations, rules and other provisions related to diagnosis and treatment norms; (2) concealing or refusing to provide medical record information related to the dispute; and (3) losing, falsifying, altering or illegally destroying medical record data. Article 1253 Where a building, structure or other facility and its shelves or hanging objects fall off or fall off causing damage to others, and the owner, manager or user cannot prove that he is not at fault, he shall bear tort liability. After the owner, manager or user has compensated, if there are other responsible persons, they have the right to recover compensation from the other responsible persons. Article 1255 Where the pile collapses, rolls down or slides off causing damage to others, and the person who stacks it cannot prove that he is not at fault, he shall bear tort liability. Article 1257 Where the owner or manager of a forest tree cannot prove that he is not at fault due to damage to others caused by the breaking, dumping or falling of fruit, he shall bear tort liability. Article 1258 Whoever excavates, repairs, or installs underground facilities in a public place or on a road and causes damage to others, and the builder cannot prove that he has set up obvious signs and taken safety measures, shall bear tort liability. Where underground facilities such as manholes cause damage to others, and the manager cannot prove that he has fulfilled his management duties, he shall bear tort liability.
Article 1166:Where an actor causes damage to the civil rights and interests of others, regardless of whether the actor is at fault or not, and the law provides that he shall bear tort liability, follow those provisions.
This article provides for no-fault liability. The premise of no-fault liability is also "legal provisions". The specific legal provisions on no-fault liability do not express the provision that a person can be exempted from liability by proving that there is no fault. No-fault liability is more abundant in this Part and will not be consolidated.
Article 1167:Where the infringing act endangers the personal or property safety of others, the infringed party has the right to request the infringer to bear tort liability such as stopping the infringement, removing the obstruction, or eliminating the danger.
The provisions of this article are the manner of liability in cases of endangering the safety of the person and property of others. "Jeopardy" means that the damage has not actually occurred but there is a real threat of occurrence.
Where litigation means are used to realize this entry, the "act preservation" measures in the Civil Procedure Law may be employed. Article 100 of the Civil Procedure Law of the People's Republic of China stipulates that:
In cases where the conduct of one of the parties or other reasons may make it difficult to enforce the judgment or cause other harm to the parties, the people's court may, on the basis of the application of the other party, rule to preserve its property, order it to perform certain acts, or prohibit it from performing certain acts; if the parties have not submitted an application, the people's court may also rule to adopt preservation measures when necessary. Where the people's court adopts preservation measures, it may order the applicant to provide a guarantee, and if the applicant does not provide a guarantee, rule to reject the application. After the people's court accepts the application, if the situation is urgent, it must make a ruling within 48 hours; where a ruling is made to adopt preservation measures, enforcement shall begin immediately.
Article 1168 Where two or more persons jointly commit an infringing act, causing harm to others, they shall bear joint and several liability.
This article deals with contributory torts and their liability.
Joint tort liability, the constituent elements: (1) the perpetrator is two or more people; (2) there is a common association between the actors, or a subjective association, that is, a connection of intent, or an objective association; (3) the damage to the infringed person is caused, and the damage is inseparable; (4) there is a causal relationship between the acts of each actor and the damage.
"Joint and several liability", according to Article 178 of the Civil Code:
Where two or more persons bear joint and several liability in accordance with law, the right holder has the right to request that part or all of the jointly and severally responsible persons bear responsibility. The share of liability of joint and severally responsible persons is determined according to the size of their respective responsibilities; The joint and severally responsible person who actually bears more responsibility than his own share of responsibility has the right to recover compensation from other jointly and severally responsible persons. Joint and several liability shall be prescribed by law or agreed upon by the parties.
The determination of contributory infringement is a difficult point in litigation practice. In view of the facts of different cases, different fields and industries, and different acts, the determination of joint infringement needs to be comprehensively and balancedly understood in combination with the facts of the case, the legal interests involved, and the effect of the judgment. Therefore, in terms of the specific understanding of joint infringement, more attention should be paid to the summary of the practical experience of the people's courts and arbitration organs.
Among the series of Guiding Cases issued by the Supreme People's Court, there are a number of cases involving the determination of joint infringement, all of which have good practical reference value, such as "Guiding Case No. 83: Weihai Jiayi Baking Life Appliance Co., Ltd. v. Yongkang Jinshide Industry and Trade Co., Ltd. and Zhejiang Tmall Network Co., Ltd. Infringement of Invention Patent Dispute Case" made a detailed analysis of the joint and several liability for the enlarged part of the loss caused by Tmall Company's failure to transmit the complaint information to the respondent in this case. In "Guiding Case No. 130: Chongqing Municipal People's Government, Chongqing Liangjiang Volunteer Service Development Center v. Chongqing Zangjinge Property Management Co., Ltd., Chongqing Shouxu Environmental Protection Technology Co., Ltd., Ecological Environment Damage Compensation, and Environmental Civil Public Interest Litigation Case", the People's Court also made a wonderful exposition on whether the production enterprise itself that has entrusted a special environmental governance business company constitutes joint infringement of illegal pollution discharge, excerpted as follows:
First, China implements a pollutant discharge permit system, which is a means for the state to effectively manage polluters, and the enterprise that obtains the pollutant discharge permit is the polluting unit and has the obligation to discharge pollution according to law, otherwise it will bear the corresponding legal responsibility. The Zangjinge Company holds a pollutant discharge permit and must ensure that it is discharged in accordance with the provisions and requirements of the permit. Zangjinge Company entrusted wastewater treatment to Shouxu Company, which specializes in environmental remediation business (including industrial wastewater operation), in the form of a commissioned operation agreement, which is not prohibited by law. However, whether it discharges on its own or entrusts others to discharge, Zangjinge must ensure the normal operation of its wastewater treatment station and ensure that the discharge meets national and local discharge standards, which is the statutory responsibility of the enterprise that obtains the discharge permit, and this liability cannot be discharged through civil agreements. It is stated that as the main body of pollutant discharge, Zangjinge Company has the statutory responsibility to supervise the legal discharge of Shouxu Company, and according to the Entrusted Operation Agreement, it also has the obligation to supervise the daily discharge of Pollution of Shouxu Company, and the illegal discharge of pollutants in this case lasted for 1 year and 8 months, and Zangjinge Company obviously failed to fulfill its regulatory obligations. Second, whether it is the statutory responsibility of the owner of the sewage equipment and the polluting entity, or in accordance with the agreement between the two parties, the Zangjinge Company should ensure that the wastewater treatment facilities and equipment are normal and intact. In August 2014, when Zangjinge Company transformed the waste acid pond into a wastewater regulation pond No. 1 and changed the underground pipe network to a high-altitude pipe network operation, it did not close the 120mm diameter hidden pipe in the pool according to the normal treatment method, and Zangjinge Company did not produce evidence to prove the reasonable legitimacy of not sealing the hidden pipe, and It was through this hidden pipe that Shouxu Company implemented illegal discharge, that is to say, Zangjinge Company knew that the wastewater treatment equipment provided for Shouxu Company had a pipe network that could carry out illegal discharge, according to which it could be determined to have illegal intentions. And objectively provides conditions for the completion of illegal emissions. Third, the wastewater to be treated is provided to Shouxu Company by Zangjinge Company, then Zangjinge Company knows the amount of wastewater to be treated, and Zangjingge Company, as the main body of sewage discharge, is responsible for paying sewage charges to the environmental protection department, and it also knows the amount of wastewater discharged legally, plus as a property management department, its actual water consumption generated by enterprises in the park is also clear, and the combination of these data can confirm the existence of illegal discharge behavior. Therefore, it can be determined that the Zangjinge Company knows that the Shouxu Company is carrying out illegal sewage discharge behavior, but it has allowed the Shouxu Company to discharge wastewater illegally, and at the same time continues to hand over the wastewater to the Shouxu Company for disposal, which can be regarded as the formation of a tacit understanding with the Shouxu Company, with the intention of joint infringement, and jointly caused pollution consequences. Fourth, environmental infringement cases have the complexity of the infringement method, the complexity of the infringement process, the concealment and long-term nature of the consequences of the infringement, and the difficulty of proof, especially for the subjective intention of the polluting enterprise to illegally discharge pollution, is relatively difficult, and the case involves the infringement of environmental public welfare, so the particularity of such cases should be fully taken into account, and the evasion of responsibility and damage to the public welfare should be avoided by accurately grasping the principle of proof and attribution. In summary, according to the facts and evidence of this case, the evidence that Zangjinge Company and Shouxu Company constituted joint infringement of environmental pollution has reached a highly obvious civil certification standard, and it should be found that Zangjingge Company and Shouxu Company have subjectively common intention and objective common behavior in illegal pollution discharge, and the two defendants constitute joint infringement and should bear joint and several liability.