What are the circumstances under which a tortfeasor may not assume liability or reduce liability under the Tort Liability Law?
Chapter 3 of the Tort Liability Law contains centralized provisions. As follows:
Article 26 If the infringed party is also at fault for the occurrence of the damage, the liability of the tortfeasor may be reduced.
Article 27 If the damage is caused intentionally by the victim, the perpetrator shall not be held responsible.
Article 28 If the damage is caused by a third party, the third party shall bear tort liability.
Article 29 If any damage is caused to others due to force majeure, we shall not be held liable. If the law provides otherwise, such provisions shall prevail.
Article 30 If damage is caused due to legitimate defense, no liability will be assumed. If legitimate defense exceeds the necessary limit and causes undue damage, the person who defends himself shall bear appropriate liability.
Article 31 If damage is caused due to emergency evacuation, the person who caused the danger shall bear the responsibility. If the danger is caused by natural causes, the emergency evacuation person will not be liable or provide appropriate compensation. If emergency evacuation measures are inappropriate or exceed necessary limits, causing undue damage, the emergency evacuation person shall bear appropriate liability. Under what circumstances can the tortfeasor be exempted from liability or have his liability reduced?
Hello subject:
According to Article 3 of Chapter 3 of the Tort Liability Law of the People's Republic of China Article 26 stipulates: If the infringed party is also at fault for the occurrence of the damage, the liability of the tortfeasor can be reduced.
Article 27 stipulates: If the damage is caused intentionally by the victim, the perpetrator shall not bear responsibility.
Article 28 stipulates: If the damage is caused by a third party, the third party shall bear tort liability.
Article 29 stipulates: If damage to others is caused by force majeure, we shall not be liable. If the law provides otherwise, such provisions shall prevail.
Article 30: If damage is caused due to legitimate defense, no liability will be assumed. If legitimate defense exceeds the necessary limit and causes undue damage, the person who defends himself shall bear appropriate liability.
Article 31 stipulates: If damage is caused due to emergency avoidance, the person who caused the danger shall bear the responsibility. If the danger is caused by natural causes, the emergency evacuation person will not assume responsibility or provide appropriate compensation. If emergency evacuation measures are inappropriate or exceed necessary limits, causing undue damage, the emergency evacuation person shall bear appropriate liability.
Therefore, when you infringe the rights under the above circumstances, you can reduce your liability or not bear liability according to law, otherwise you will bear full liability.
I hope my answer can be helpful to you, and I wish you a happy New Year! The core ways of bearing liability in the Tort Liability Law are
The main ways of bearing tort liability are:
(1) Stop the infringement;
(2) Remove obstacles;
(3) Eliminate danger;
(4) Return property;
(5) Restoration to original condition;
( 6) Compensate for losses;
(7) Apologize;
(8) Eliminate the impact and restore reputation.
Property infringement generally means stopping the infringement and compensating for losses; personal infringement generally means stopping the infringement and making an apology. What methods of bearing tort liability are stipulated in the Tort Liability Law?
See Article 15 of the Tort Liability Law. The main ways of bearing tort liability are:
(1) ) Stop the infringement;
(2) Remove obstacles;
(3) Eliminate danger;
(4) Return property;
(5) Restore the original status quo;
(6) Compensate for losses;
(7) Apologize;
(8) Eliminate the impact and restore reputation.
The above methods of bearing infringement liability can be applied individually or in combination. According to the Tort Liability Law, who are the entities that bear high-risk liability?
See Articles 69 to 77 of the Tort Liability Law.
Article 69 Anyone who engages in highly dangerous operations and causes damage to others shall bear tort liability.
Article 70 If a nuclear accident occurs at a civilian nuclear facility and causes damage to others, the operator of the civilian nuclear facility shall bear tort liability. However, if it can be proven that the damage was caused by war or other circumstances or intentionally caused by the victim, the operator shall not Take responsibility.
Article 71 If a civil aircraft causes damage to others, the operator of the civil aircraft shall bear tort liability, but will not be held liable if it can be proven that the damage was caused intentionally by the victim.
Article 72 If the possession or use of flammable, explosive, highly toxic, radioactive or other highly dangerous substances causes damage to others, the possessor or user shall bear tort liability, provided that it can be proven that the damage was caused by The victim will not be held liable if it is caused intentionally or due to force majeure. If the infringed party is grossly negligent in causing the damage, the liability of the possessor or user may be reduced.
Article 73 If the operator engages in high-altitude, high-pressure, or underground excavation activities or uses high-speed rail transportation to cause damage to others, the operator shall bear tort liability, but it can be proven that the damage was caused intentionally by the victim or due to force majeure. , does not assume responsibility. If the infringed party is at fault for causing the damage, the operator's liability can be reduced.
Article 74 If a highly dangerous object is lost or abandoned and causes damage to others, the owner shall bear tort liability. If the owner hands over highly dangerous goods to others for management, the manager shall bear tort liability; if the owner is at fault, he shall bear joint and several liability with the manager.
Article 75 If the illegal possession of highly dangerous objects causes damage to others, the illegal possessor shall bear tort liability. If the owner or manager cannot prove that he has exercised a high degree of care to prevent others from illegal possession, he shall bear joint and several liability with the illegal possessor.
Article 76 If the manager enters a highly hazardous activity area or a highly hazardous material storage area without permission and is damaged, and the manager has taken safety measures and fulfilled his duty of warning, he may be reduced or not liable.
Article 77 If the liability for high risk is stipulated by law and the limit of compensation is stipulated, such provisions shall prevail.
The Tort Liability Law stipulates how joint and several liability should be borne. In the Tort Liability Law, why does the perpetrator bear joint and several liability if the tortfeasor cannot be determined?
The Tort Liability Law stipulates 7 types of liability In accordance with the provisions of this Law, infringers shall bear joint and several liability in the following circumstances: (1) ***Joint and several liability with the infringer. Article 8 of this Law stipulates that if two or more persons jointly commit infringement and cause damage to others, they shall bear joint and several liability. (2) The joint liability of the instigator, helper and perpetrator. Article 9 of this Law stipulates that those who instigate or assist others to commit infringements shall bear joint and several liability with the perpetrators. (3) Joint and several liability between *** and the dangerous perpetrator. Article 10 of this Law stipulates that if two or more people commit an act that endangers the personal or property safety of others, and the behavior of one or more of them causes damage to others, and the specific infringer can be identified, the tortfeasor shall bear the liability; if the specific infringer cannot be identified, , the perpetrator shall be jointly and severally liable. (4) The acts performed separately are sufficient to cause the perpetrators to be jointly and severally liable for all damages. Article 11 of this Law stipulates that if two or more persons commit infringement acts separately and cause the same damage, and the infringement act of each person is sufficient to cause all the damage, the perpetrators shall bear joint and several liability. (5) Joint and several responsibilities between network service providers and network users. Article 36 of this Law stipulates that if an Internet user uses Internet services to commit infringement, the infringed party has the right to notify the Internet service provider to take necessary measures such as deletion, blocking, and disconnection. If the network service provider fails to take necessary measures in a timely manner after receiving the notice, it shall be jointly and severally liable with the network user for the expanded damage. If an Internet service provider knows that an Internet user is using its Internet services to infringe on the civil rights of others and fails to take necessary measures, it shall bear joint and several liability with the Internet user. (6) The joint and several liability of the owners, managers and illegal possessors of highly dangerous goods. Article 74 of this Law stipulates that if the loss or abandonment of highly dangerous objects causes damage to others, the owner shall bear tort liability. If the owner hands over highly dangerous goods to others for management, the manager shall bear tort liability; if the owner is at fault, he shall bear joint and several liability with the manager. Article 75 of this Law stipulates that if the illegal possession of highly dangerous objects causes damage to others, the illegal possessor shall bear tort liability.
If the owner or manager cannot prove that he has exercised a high degree of care to prevent others from illegally possessing the property, he shall bear joint and several liability with the illegal possessor. (7) The joint and several liability of the construction unit and the construction unit. Article 86 of this Law stipulates that if a building, structure or other facility collapses and causes damage to others, the construction unit and the construction unit shall bear joint and several liability. Judging from the above provisions, this law does not stipulate joint and several liability for the tort liability of the employer and the tort liability of labor services between individuals, but adopts vicarious liability, which changes the current judicial interpretation of the joint and several liability of employers and employees. Use the principles of tort liability law to analyze the provisions of Article 10 of the "Tort Liability Law"
Article 10 of the "Tort Liability Law" stipulates the same dangerous behavior. The normative purpose of this article is to alleviate the victim's difficulty in proving causation. The purpose of this specification cannot be deviated from when explaining the constituent elements and exemptions for different hazards. In addition to the basic constituent elements, there are two important constituent elements of the same dangerous behavior. The first is that the perpetrator and the dangerous person participated in the dangerous behavior that harmed the interests of the victim; the second is the causal relationship. Unknown means that the specific infringer cannot be identified. In addition, the absence of intentional contact between the perpetrator and the dangerous perpetrator is also a negative component of the perpetrator's dangerous behavior, which can effectively distinguish the same danger from other infringements. The differences between my country’s latest tort liability law and previous tort liability laws regarding product liability law and their impact on liability
1. Clarify that the nature of “product liability” is tort liability
Product liability refers to the civil liability borne by product manufacturers and sellers due to damage to other people's property and personal life caused by defective products. Chinese civil law scholars generally believe that product liability is a special tort liability rather than a breach of contract liability. The Tort Liability Law first stipulates the tort liability of producers. Article 41 of the law clearly stipulates: "If a defective product causes damage to others, the producer shall bear tort liability." At the same time, the law also stipulates that sales Article 42 of the Law clearly stipulates: “If a product is defective due to the fault of the seller, causing damage to others, the seller shall bear tort liability. The seller cannot specify the manufacturer of the defective product, nor can he specify the manufacturer of the defective product. If the supplier of defective products is a supplier of defective products, the seller shall bear tort liability. "The above provisions of the Tort Liability Law are better than those stipulated in Article 41 of the Product Quality Law and Article 122 of the General Principles of Civil Law." Liability" is more clear. "Tort liability" is different from "liability for breach of contract". It does not presuppose the existence of a contractual relationship between the infringer and the victim, but is based on the fact that product defects cause damage to others. It is a legal obligation. Legal liability arising from direct breach. Therefore, whether it is a consumer, user, or other third party who has a direct contractual relationship with the manufacturer or seller of a defective product, the victim can claim compensation for personal injury or property damage caused by the use of the defective product. In terms of the burden of proof, it is only necessary to prove the causal relationship between product defects, damage, use of defective products and damage.
2. There is no provision for circumstances that exclude the application of "product liability"
Article 41 of the "Product Quality Law" stipulates three circumstances for producers to exclude product liability, namely, production If the party can prove that the product has not been put into circulation; the defect that caused the damage did not exist when the product was put into circulation; the scientific and technological level at the time the product was put into circulation could not detect the existence of the defect, etc., it will not be liable for compensation. However, the Tort Liability Law does not stipulate these three exclusion situations. From the perspective of the legislative process, the final legal document deleted the content of "according to the law, no liability or reduced liability" proposed in the draft for comments. In other words, from the perspective of the legislative spirit of the Tort Liability Law, as long as the product defect does cause damage to others, the manufacturer cannot be exempted from liability. In terms of the principle of legal application, for legal provisions at the same level, "new law" takes precedence over "old law". Therefore, according to this clause, regardless of whether it is put into circulation, the producer must bear the liability for infringement caused by product defects, which increases the responsibility of the enterprise and prompts the enterprise to improve its awareness of product quality. In order to balance the responsibilities of victims and producers and sellers, Article 46 of the Tort Liability Law stipulates: “If a product is found to be defective after it is put into circulation, the producer or seller shall promptly take remedial measures such as warnings and recalls. If remedial measures are not taken in a timely manner or remedial measures are ineffective and cause damage, the infringement liability shall be borne.
"According to this, if a product is found to be defective after it is put into circulation, and the manufacturer or seller takes effective remedial measures such as warnings and recalls in a timely manner, it does not need to bear infringement liability. This clause is also the legal basis for the "defective product recall" system. In comparison The "Consumer Rights and Interests Protection Law" requires operators to take measures when discovering serious defects, report them to relevant administrative departments, and inform consumers. The provisions of the "Tort Liability Law" provide consumers with a higher level of protection and are more in line with product quality conditions." The new situation is that "compliance standards" are met but "reliability standards" are not met. Enterprises are encouraged to take remedial measures such as warnings and recalls when products are found to be defective.
3. Product defects caused by the fault of a third party may Recovery
Although the Tort Liability Law does not directly stipulate the product liability of third parties such as transporters and warehouses, the law clearly stipulates the recovery of third party liability by producers and sellers of products. Article 44 of the Tort Liability Law stipulates that “if a product is defective due to the fault of a third party such as a transporter or warehouse, causing damage to another person, the manufacturer or seller of the product shall have the right to compensate the third party for compensation. "Three persons to recover compensation". This new regulation clarifies the fault liability of the third party causing product defects, protects the legitimate rights and interests of producers and sellers, and also provides a guarantee for "product defects caused by producers, and after the seller compensates, there are The development of regulations such as "the manufacturer has the right to recover compensation from the producer" and "if a product is defective due to the fault of the seller, the producer shall have the right to recover compensation from the seller after compensation" reflects the new requirements of civil liability and is in line with today's product production The actual situation of manufacturing division of labor is becoming increasingly complex and diverse.
4. "Product defect hazards" can be intervened in advance
"Product defect hazards" refer to product defects that may endanger personal and property safety. The "Product Quality Law" only stipulates relief measures for personal and property damage caused by product defects, but the damage consequences have not yet occurred. The "Tort Liability Law" not only adjusts the situation where the damage has been caused, but also the danger of product defects. It stipulates the form of liability. According to the provisions of Article 45 of the Tort Liability Law, if a product defect endangers the personal or property safety of others, the infringed party has the right to request the manufacturer or seller to bear the responsibility for eliminating obstructions, eliminating dangers, etc. Tort liability. By promptly eliminating and eliminating the risk of damage from defective products and preventing it before it occurs, consumers' personal and property safety can be protected to the greatest extent.
5. Punitive damages are applicable to "product liability"
p>Punitive damages are compensations made by the court that exceed the actual amount of damage. Punitive damages are the most severe form of civil liability. Punitive damages are compensatory civil liabilities. The purpose of increasing the liability for compensation is to involve the mental suffering of the responsible person, that is, the state uses coercive means to impose losses on the property of the responsible person to achieve the effect of punishment. The "Tort Liability Law" newly stipulates the punishment of "product liability". In addition to compensatory damages for consumers, punitive damages are also imposed on those responsible. Article 47 of the Law stipulates: "If a product is knowingly known to be defective and still produces or sells it, causing death or serious damage to the health of others, the infringed party has the right to request corresponding punitive damages." This provision, on the one hand, increases the risk of injury. People’s enthusiasm for obtaining compensation, on the other hand, serves as a model to punish past behaviors and deter similar behaviors in the future. This will undoubtedly have a huge deterrent effect on some operators who lack a sense of social responsibility and prevent them from acting recklessly. Compared with the previous provisions of my country's "Consumer Rights and Interests Protection Law" regarding punitive damages for refunds and compensation for fraud, the new provisions of the "Tort Liability Law" serve as a highlight of legislation, triggering concerns among producers, operators, and consumers. A lot of attention. From an operational point of view, the "multiple" of punitive damages needs to be further clarified, and the definition of "defect" needs to be more cautious. How to prove that the producer or seller has "knowledge" is worth thinking about.
6. “Product liability” should take precedence as tort liability
The Tort Liability Law establishes the principle of “priority to tort liability” in Chapter 1 “General Provisions”, that is, The infringer shall bear tort liability, administrative liability, and criminal liability for the same act. If the infringer's property is insufficient to pay, the infringer shall bear tort liability first. In legal practice, legal liability includes civil liability, administrative liability and criminal liability.
Product quality violations may result in two or more legal liabilities at the same time, and sometimes several legal liabilities cannot replace each other. When these legal liabilities all involve property payment, it may happen that the offender's property is insufficient to bear all property liabilities at the same time. In this case, product liability should be given priority. This is the continuation and development of the provisions of the Product Quality Law. The Food Safety Law also embodies the spirit of giving priority to civil liability. Product liability priority reflects the people-oriented, consumer-oriented, and victim-oriented legal concepts under the conditions of the socialist market economy. Compensation for the victim's property losses and mental damage through the offender's compensation truly embodies the fairness of the law.
7. "Product liability" applies to compensation for mental damage
Article 22 of the "Tort Liability Law" stipulates that if the personal rights and interests of others are infringed and serious mental damage is caused to others, the infringed party shall You can seek compensation for emotional distress. This is the first time that my country’s current law clearly stipulates compensation for mental damage. This moral damage compensation provision also applies to product liability. Infringement of personal rights includes infringement of the right to life, health, body, name, portrait, reputation, honor, personal dignity, personal freedom, privacy, etc., but does not include property rights. If property rights are infringed upon, compensation must be paid based on the property losses. The Tort Liability Law's provisions on compensation for mental damage are relatively principled. For example, the standard for "serious mental damage" needs to be further specified or further clarified through case guidance. However, this clear provision on compensation for mental damages will have a positive impact on product liability. When people suffer mental damage due to product defects, in addition to obtaining relief by stopping the infringement, eliminating the impact, making an apology, etc., the victim can also request financial compensation for relief and comfort. Compensation for mental damage is a combination of soothing, compensatory and punitive. It is not only a civil rights remedy for the victim's spiritual rights and interests, but also demonstrates a certain degree of economic punitiveness for the infringer as a sanction and admonishment. Therefore, compensation for mental damages protects the spiritual rights and interests of consumers to the greatest extent and embodies the constitutional principle of "respecting and protecting human rights."