"Guarding the Safety of Overhead" | Interpretation of the Legal Provisions of Article 1254 of the Civil Code on High-altitude Parabolic Infringement
Published:
2022-05-06
1. Introduction With the advancement of urbanization and the increasing number of high-rise buildings, tragedies caused by high-altitude parabolic incidents have occurred frequently in recent years. In order to protect the safety of people's heads, the Civil Code, which came into effect on January 1, 2020, clearly stipulates the liability rules for high-altitude throwing objects. In October 2021, the author personally experienced a high-altitude throwing incident, and the author's family almost suffered irreparable injuries. In the process of dealing with the incident, the author also thought more about the legal provisions of Article 1254 of the Civil Code on high-altitude throwing infringement. 2. legal provisions Article 1254 of the the People's Republic of China Civil Code [Liability for Damage Caused by Throwing Objects from High Altitude and Falling Objects] prohibits throwing objects from buildings. If an article is thrown from a building or an article falling from a building causes damage to others, the infringer shall bear the tort liability in accordance with the law; if it is difficult to determine the specific infringer after investigation, unless it can be proved that he is not the infringer, the user of the building who may cause the harm shall give compensation. The user of the building who may have caused the damage shall have the right to recover the compensation from the infringer. Building managers such as property service enterprises shall take necessary safety measures to prevent the occurrence of the circumstances specified in the preceding paragraph; if they fail to take necessary safety measures, they shall bear tort liability for failure to perform their safety guarantee obligations in accordance with the law. In the event of the occurrence of the circumstances specified in the first paragraph of this article, the public security and other organs shall promptly investigate and identify the responsible persons in accordance with the law. Interpretation of 3. legal provisions Article 1254 of the Civil Code is divided into three paragraphs on the liability for damage caused by high-altitude throwing (falling) objects, and clarifies the liability of the subject of high-altitude parabolic tort liability. This is not only conducive to determining the actual infringer, urging the manager to fulfill the obligation of safety and security, but also conducive to fully mobilizing all social forces to participate in the comprehensive management of high-altitude parabolic infringement. The provisions of the Civil Code on the liability for damage caused by objects thrown (falling) from high altitude have the following characteristics: 1, with prohibitive provisions to clarify the illegality of high-altitude parabolic behavior. Article 1254 of the Civil Code has a clear attitude towards the infringement of high-altitude throwing objects. By setting prohibitions, it clarifies the public's code of conduct for civil activities and prohibits people from throwing objects from buildings. At the same time, this article publicly defines the behavior that was only considered uncivilized in the minds of the general public as an illegal act, and establishes a bottom line and norms for those who have weak public safety awareness and relatively lack of legal awareness, through the use of mandatory legal authority to prevent and reduce the occurrence of high-altitude parabolic behavior. 2. It is a general rule that the actual infringer shall bear the tort liability according to law. The high-altitude parabolic actor is usually intentional subjectively, and there are usually cases where the owner, manager and user of the object fail to fulfill their management and maintenance obligations, so the tortfeasor is subjectively liable. This provision clarifies for the first time the general rule that the actual infringer should bear tort liability in accordance with the law. Compared with the previous direct provision that when it is difficult to determine the infringer, the compensation should be given by the user of the building who may cause harm, the content clearly defines "who is responsible", prevents the situation that the residents of the whole building need to "sit together" as long as the incident of throwing objects from high altitude occurs, and establishes the correct value orientation. 3, may cause damage to the building user to give compensation as an exception, and give the building user may cause damage to the right to recover. The user of the building who may cause harm is no longer the responsibility of "sitting together", but only a kind of compensation in the nature of advance payment, which not only protects the legitimate rights and interests of the victims, but also pays attention to safeguarding the legitimate rights and interests of the building users. Through the inversion of the burden of proof, as far as possible to narrow the scope of the actual tort responsible person, guide and encourage to actively find the direct infringer. If the possible perpetrator fulfills the liability of compensation, once the actual infringer is found, he can recover from the actual infringer. This provision balances the interests of the obligor of compensation as much as possible by giving the right of recourse to the user of the building who may cause harm. 4, stressed the property and building managers of the prevention and management of security responsibilities. According to the law and the contract signed with the owner, the property has the corresponding security obligation in the property service area. If the obligation is not fulfilled, it is only the liability for breach of contract. In this article, if the property and building managers fail to take safety measures to prevent "throwing objects from high altitude", they will be investigated for tort liability for failing to perform their security obligations in accordance with the law. On the one hand, it can urge the property to strengthen the daily supervision and take effective measures to prevent the occurrence of high-altitude parabolic infringement. On the other hand, it can also promote the property to actively participate in the search for actors after the occurrence of high-altitude parabolic infringement, so as to improve the possibility of finding the actual infringer. Compared with ordinary owners, properties play a very important role in preventing and detecting high-altitude throwing incidents, such as installing upward monitoring on the outer walls of the community, and publicizing the hazards of high-altitude throwing by setting up warning signs, billboards, leaflets, etc. After high-altitude throwing incidents occur, monitoring or investigation is used to help increase the possibility of identifying the actual infringer, which can reduce the occurrence of high-altitude throwing incidents. 5, strengthen the investigation of the actual infringer, clear the public security and other organs of the investigation responsibility. The victims of high-altitude parabolic civil cases often find it difficult to find the actual infringer because they do not have sufficient investigation capabilities or because the investigation cost is too high. Therefore, in previous cases, the victims have chosen to directly sue the building users who may cause harm. As a result, a large number of actual infringers evade their responsibilities, and finally they can only be compensated by the building users who may cause harm. Now, the investigation responsibilities of public security and other organs are clarified in the form stipulated in the Civil Code, and the public security organs are urged to actively perform their duties, file a case for investigation in a timely manner after the occurrence of a high-altitude throwing case, and through the use of professional investigation techniques and methods, these are conducive to the investigation of the case, protect the legitimate rights and interests of the victims, and reduce or even avoid the application of "compensation for building users who may harm, it also provides the necessary preconditions for the exercise of the right of subsequent recovery. 4. epilogue Although there are "laws to follow" for high-altitude parabolic cases after the promulgation and implementation of the Civil Code, in the actual handling of high-altitude parabolic cases, there are still difficulties in obtaining evidence and safeguarding rights. The author has also experienced the situation of property prevarication and inaction, the public security organs do not pay attention to it, and in the end, we can only wait for a truth when serious consequences such as serious injury or death occur. Therefore, the author believes that in order to truly realize "guarding the safety above the head", it is not only necessary for every citizen to continuously improve their own public moral level and concept of the rule of law, but also for the property, public security and other departments to really pay attention to such incidents and perform their duties in accordance with the law.
1. Introduction
With the advancement of urbanization and the increasing number of high-rise buildings, tragedies caused by high-altitude parabolic incidents have occurred frequently in recent years. In order to protect the safety of people's heads, the Civil Code, which came into effect on January 1, 2020, clearly stipulates the liability rules for high-altitude throwing objects. In October 2021, the author personally experienced a high-altitude throwing incident, and the author's family almost suffered irreparable injuries. In the process of dealing with the incident, the author also thought more about the legal provisions of Article 1254 of the Civil Code on high-altitude throwing infringement.
2. legal provisions
Article 1254 of the the People's Republic of China Civil Code [Liability for Damage Caused by Throwing Objects from High Altitude and Falling Objects] prohibits throwing objects from buildings. If an article is thrown from a building or an article falling from a building causes damage to others, the infringer shall bear the tort liability in accordance with the law; if it is difficult to determine the specific infringer after investigation, unless it can be proved that he is not the infringer, the user of the building who may cause the harm shall give compensation. The user of the building who may have caused the damage shall have the right to recover the compensation from the infringer.
Building managers such as property service enterprises shall take necessary safety measures to prevent the occurrence of the circumstances specified in the preceding paragraph; if they fail to take necessary safety measures, they shall bear tort liability for failure to perform their safety guarantee obligations in accordance with the law.
In the event of the occurrence of the circumstances specified in the first paragraph of this article, the public security and other organs shall promptly investigate and identify the responsible persons in accordance with the law.
Interpretation of 3. legal provisions
Article 1254 of the Civil Code is divided into three paragraphs on the liability for damage caused by high-altitude throwing (falling) objects, and clarifies the liability of the subject of high-altitude parabolic tort liability. This is not only conducive to determining the actual infringer, urging the manager to fulfill the obligation of safety and security, but also conducive to fully mobilizing all social forces to participate in the comprehensive management of high-altitude parabolic infringement. The provisions of the Civil Code on the liability for damage caused by objects thrown (falling) from high altitude have the following characteristics:
1, with prohibitive provisions to clarify the illegality of high-altitude parabolic behavior.
Article 1254 of the Civil Code has a clear attitude towards the infringement of high-altitude throwing objects. By setting prohibitions, it clarifies the public's code of conduct for civil activities and prohibits people from throwing objects from buildings. At the same time, this article publicly defines the behavior that was only considered uncivilized in the minds of the general public as an illegal act, and establishes a bottom line and norms for those who have weak public safety awareness and relatively lack of legal awareness, through the use of mandatory legal authority to prevent and reduce the occurrence of high-altitude parabolic behavior.
2. It is a general rule that the actual infringer shall bear the tort liability according to law.
The high-altitude parabolic actor is usually intentional subjectively, and there are usually cases where the owner, manager and user of the object fail to fulfill their management and maintenance obligations, so the tortfeasor is subjectively liable. This provision clarifies for the first time the general rule that the actual infringer should bear tort liability in accordance with the law. Compared with the previous direct provision that when it is difficult to determine the infringer, the compensation should be given by the user of the building who may cause harm, the content clearly defines "who is responsible", prevents the situation that the residents of the whole building need to "sit together" as long as the incident of throwing objects from high altitude occurs, and establishes the correct value orientation.
3, may cause damage to the building user to give compensation as an exception, and give the building user may cause damage to the right to recover.
The user of the building who may cause harm is no longer the responsibility of "sitting together", but only a kind of compensation in the nature of advance payment, which not only protects the legitimate rights and interests of the victims, but also pays attention to safeguarding the legitimate rights and interests of the building users. Through the inversion of the burden of proof, as far as possible to narrow the scope of the actual tort responsible person, guide and encourage to actively find the direct infringer. If the possible perpetrator fulfills the liability of compensation, once the actual infringer is found, he can recover from the actual infringer. This provision balances the interests of the obligor of compensation as much as possible by giving the right of recourse to the user of the building who may cause harm.
4, stressed the property and building managers of the prevention and management of security responsibilities.
According to the law and the contract signed with the owner, the property has the corresponding security obligation in the property service area. If the obligation is not fulfilled, it is only the liability for breach of contract. In this article, if the property and building managers fail to take safety measures to prevent "throwing objects from high altitude", they will be investigated for tort liability for failing to perform their security obligations in accordance with the law. On the one hand, it can urge the property to strengthen the daily supervision and take effective measures to prevent the occurrence of high-altitude parabolic infringement. On the other hand, it can also promote the property to actively participate in the search for actors after the occurrence of high-altitude parabolic infringement, so as to improve the possibility of finding the actual infringer. Compared with ordinary owners, properties play a very important role in preventing and detecting high-altitude throwing incidents, such as installing upward monitoring on the outer walls of the community, and publicizing the hazards of high-altitude throwing by setting up warning signs, billboards, leaflets, etc. After high-altitude throwing incidents occur, monitoring or investigation is used to help increase the possibility of identifying the actual infringer, which can reduce the occurrence of high-altitude throwing incidents.
5, strengthen the investigation of the actual infringer, clear the public security and other organs of the investigation responsibility.
The victims of high-altitude parabolic civil cases often find it difficult to find the actual infringer because they do not have sufficient investigation capabilities or because the investigation cost is too high. Therefore, in previous cases, the victims have chosen to directly sue the building users who may cause harm. As a result, a large number of actual infringers evade their responsibilities, and finally they can only be compensated by the building users who may cause harm. Now, the investigation responsibilities of public security and other organs are clarified in the form stipulated in the Civil Code, and the public security organs are urged to actively perform their duties, file a case for investigation in a timely manner after the occurrence of a high-altitude throwing case, and through the use of professional investigation techniques and methods, these are conducive to the investigation of the case, protect the legitimate rights and interests of the victims, and reduce or even avoid the application of "compensation for building users who may harm, it also provides the necessary preconditions for the exercise of the right of subsequent recovery.
4. epilogue
Although there are "laws to follow" for high-altitude parabolic cases after the promulgation and implementation of the Civil Code, in the actual handling of high-altitude parabolic cases, there are still difficulties in obtaining evidence and safeguarding rights. The author has also experienced the situation of property prevarication and inaction, the public security organs do not pay attention to it, and in the end, we can only wait for a truth when serious consequences such as serious injury or death occur. Therefore, the author believes that in order to truly realize "guarding the safety above the head", it is not only necessary for every citizen to continuously improve their own public moral level and concept of the rule of law, but also for the property, public security and other departments to really pay attention to such incidents and perform their duties in accordance with the law.
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