Civil Liability of High-altitude Parabolic Damage

Abstract:Modern architecture is increasingly developing towards a differentiated ownership, and how should one bear civil liability when a household throws an object to injure a pedestrian but is unable to identify the real perpetrators? Before the introduction of the Tort Liability Act, judges had different standards for determining such cases, and there was no unified theory on the issue. After the introduction of the Tort Liability Law, related issues have been resolved to some extent, but there are also outstanding issues. Therefore, based on Article 87 of the Tort Liability Law, this paper makes a preliminary study on the civil liability for the damage caused by throwing objects from high altitude.

Key words:High-altitude parabolic, subject of responsibility, mode of responsibility, exemptions

Introduction

The act of high-altitude parabolic damage first appeared in ancient Roman law, in which it was classified as a quasi-private offense, which is equivalent to a special tort in modern tort law. The second and third of the four quasi-private offenders listed in Gaius's Law Ladder are: the second is that the owner of the building bears double liability for the damage caused by any object thrown or dumped from the building to the public place; the third is that if the owner of the building hangs an object outside the building and the object falls, it will cause damage, when anyone files a lawsuit, the owner of the building shall also be liable for the fine.[1]These two types of building liability are the liability for damage caused by throwing objects on the building and the liability for damage caused by hanging objects on the building. In the Roman law period, there was only a separate ownership of buildings, there was no distinction in modern society, no matter how high the building was built, no matter how many separate spaces the building was divided into, the owner of the building was separate and clear. Therefore, the responsibility of the building in Roman law is the clear responsibility of the subject of the falling object.[2]

Into the modern society with the development of industrial civilization, in the present society, more and more high-rise buildings appear in our lives, followed by the high-altitude parabolic cases caused by the emergence. For such cases due to the emergence of the building to distinguish ownership, in the treatment is very different from the past. How to bear civil liability when the specific perpetrator of the act of throwing objects from high altitude is unknown? For a long time, there is no specific clear provision in Chinese law, and the only provision on the basis of the handling is Article 126 of the General Principles of the the People's Republic of China Civil Law, the Supreme Court on the implementation of<中华人民共和国民法通则>Article 155 of the Opinions on Several Issues and the relevant provisions of Article 16 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases[3]At the same time, there is no effective unified theory on this issue in the theoretical circle. Therefore, the results of Chongqing "ashtray case" and Jinan "chopping board case" and "different judgments in the same case" appeared in the judicial trial. On December 26, 2009, the 12th meeting of the standing Committee of the 11th national people's congress passed the tort liability law, which came into effect on July 1, 2010. article 87 of the law stipulates: "if objects thrown from buildings or falling from buildings cause damage to others and it is difficult to determine the specific infringer, the user of the building who may cause damage shall be compensated, except if he can prove that he is not the infringer." This provision provides a legal basis for the victim to find the requesting counterpart when an unknown perpetrator occurs in the act of high-altitude parabolic damage, and has a positive significance for the protection and relief of the victim's rights and interests. However, this provision, while showing positive significance, is, to some extent, a relative restriction on the freedom of owners of other buildings. On the basis of the analysis of the provisions of Article 87 of the Tort Liability Law, this paper makes a preliminary exploration of the civil liability caused by the act of high-altitude throwing, and puts forward new suggestions for the relief of high-altitude throwing victims, with a view to perfecting the relevant legal provisions.

The first chapter is the legal basis for the protection of victims in the act of high-altitude parabolic.

In a broad sense, high-altitude parabolic objects mainly refer to the situation in which objects thrown from a building cause significant injury or loss to persons or property adjacent to the building; in a narrow sense, it refers to the situation in which objects thrown from the building cause significant injury or loss to persons or property adjacent to the building, but the perpetrator of the dropped objects cannot be identified, so that the compensation obligor cannot be determined according to the current law.[4]For the act of high-altitude parabolic damage caused by the subject of the act, the victim can identify the perpetrator, so as to compensate for the loss he suffered in accordance with the legal provisions of the general tort liability. For the act of unknown subject of high-altitude throwing damage, that is, in the narrow sense of high-altitude throwing cases, the victim for their own losses to whom to claim? China's December 26, 2009 through the "Tort Liability Law" made a clear provision, that is, by the building users who may cause damage to bear the responsibility. In this paper, the following text will be the narrow sense of the high-altitude parabolic behavior of the relevant issues to explore.

If the civil liability caused by the act of throwing objects from high altitude is regarded as a kind of tort liability, (some scholars also regard it as a new type of legal debt.[5]) Then, although the perpetrator of this tort is unknown, it is still committed by someone. When assuming the responsibility, why should people such as the users of buildings who may harm bear the responsibility? What is the legal principle? There are mainly the following theories about this:

First, public safety. This theory holds that the act of high-altitude throwing harm harms the public interest. In such cases, although the act of high-altitude throwing harm only damages the property or personal safety of a specific person, it threatens the rights and interests of an unspecified person before its implementation. In order to safeguard public safety and interests, even if the specific perpetrator cannot be determined, the user of the building who may cause the harm should be held responsible.

Second, common dangerous behavior said. This doctrine asserts joint and several liability for all users of a building based on the principles and rules of common dangerous acts.

Third, sympathize with the weak. The most important thing in this doctrine is to reflect the position of sympathy for the weak in civil law. First of all, the civil law stands in the position of protecting the weak, sympathizing with the weak, protecting the weak, so that the damaged weak can get compensation; secondly, civil liability is property liability, not personal liability, so it is not completely unfair to order the person suspected of throwing to bear the responsibility, so that the weak can be protected. It may be unfair to the suspect, but it is fair to the victim.[6]

Fourth, presumption of fault. Based on the principle of presumption of fault, the doctrine advocates that the liability should be shared by the user of the building who cannot prove that he is the tortfeasor.

Which of the four doctrines above can serve as a theoretical basis for the protection of victims in the act of throwing objects from height? Holmes has said: "The injury should remain in place unless there is a good reason to pass it on to someone else". In the case of high-altitude parabolic damage, the victim's loss is transferred to the user of the building who may cause the damage, if the common dangerous act or the presumption of fault is the reason, the reason is not sufficiently convincing. Because in the common dangerous behavior, the behavior of all people is dangerous, and the perpetrator of the high-altitude throwing injury is only one person. Presumption of fault as a method of determining the elements of fault, in the proceedings by the judge based on the relevant facts of the defendant's fault. The basis for the assumption of civil liability arising from the act of high-altitude parabolic damage lies not in the presumption that the bearer is at fault, but in the presumption of certainty as to the possibility of the harmful act. For the theory of public safety and sympathy for the weak, it provides a social and ethical basis for the protection of victims in the act of throwing objects from high altitude, and the deep connotation of this basis is the fairness and justice pursued by the law. These two theories can be the theoretical basis for the protection of victims in the act of high-altitude parabolic damage. The basic position of tort law is to protect all victims, and the law should spare no effort to protect all victims of illegal infringement. In the interest contest between the loss suffered by the victim and the compensation of the building user who may cause the damage, the victim's individual ability to bear the loss is obviously weak compared with the risk sharing ability of the building user who may cause the damage as a group. Moreover, the building user who may cause the damage can also exclude himself from the responsible person through his own proof. Although it is true that the act of throwing objects from high altitude is not the act of some responsible persons, it is unfair to bear the liability only because they cannot exclude themselves from the responsible person. However, "the law should protect the interests of innocent victims by weighing the interests. This measure, although not absolutely fair, is within the tolerable scope of the law".[7]Giving care to the weak is the embodiment of social justice and the basic rule of tort law to remedy damage. To sympathize with the victims of high-altitude throwing, not only the victims themselves, but also the interests of unspecified anyone, that is, the public. If there is no relief and sympathy for the damage suffered by the victims of high-altitude throwing, then who is sure that they will not suffer from high-altitude throwing in their lives? From the point of view of the game of the interests of all parties, social value and social stability, the public security theory and the sympathy for the weak theory make a correct value judgment for the victims of the act of throwing objects from high altitude, so that the unspecified public who do not have any obligation and ability to prevent danger provides a legal basis for claiming compensation for their losses to the subjects who may have the obligation and ability to prevent danger. The injury caused by the act of throwing objects from high altitude did not stay in place, "because fairness and justice acted as a legitimate reason, allowing the injury to be transferred from the injured party to the owner and user of the building.".[8]

Chapter II The subject of responsibility in the act of high-altitude parabolic damage.

For the civil liability caused by the act of throwing objects from high altitude, Article 87 of the Tort Liability Law stipulates that it is "the user of the building that may cause harm". How should we understand the subject of responsibility: what should be the limit of "possibility", what should be the criterion of "possibility" or who should determine "possibility", and how wide should the scope of "building user" refer to? The Tort Liability Law does not give us a clear answer, and there is no relevant judicial interpretation so far. Therefore, the text will express its views on the subject of responsibility.

When determining the subject of liability in the act of parabolic damage caused by high altitude, the Tort Liability Law notes the modified word "may" before the responsible person, how should we understand the word? In terms of its meaning, "may" means "can be achieved", that is, the subject of liability has the conditions to implement or has the ability to implement the act of parabolic damage caused by high altitude. Therefore, when we understand "possibility", we must adhere to the principle that the responsible subject must be related to the harmful act in time and space. The "possible" limit here is the conditionality or capacity of the act of high-altitude parabolic damage at the time of its implementation. Judging the conditions or capabilities of "possible" requires, on the one hand, the determination of the range of possible sources of the projectile, which needs to be determined by the location of the victim, the type of projectile, the structure of the building, the specific circumstances of the damage, etc. In individual cases, it varies according to the specific circumstances and should be determined by the judge within a certain range of discretion.[9]On the other hand, it is also necessary to judge whether the subject of responsibility has the conditions or ability to carry out the act of high-altitude parabolic damage. For example, according to the deep wounds of the victims, it can be seen that the residents living on the first floor of a certain unit in a certain community are simply unable to carry out the act of throwing objects from high altitude. Another example is that a victim was injured by an ashtray and a resident living on the tenth floor is a non-smoking woman who has never placed an ashtray in her home, then the woman does not have the conditions to carry out the act of throwing objects from high altitude. The judge of whether the subject of responsibility has the conditions or ability to carry out the act of high-altitude parabolic damage should also be the judge, of course, here we also allow the subject of responsibility to prove that he does not have the conditions or ability to carry out the act of high-altitude parabolic damage.

"Building user" as the subject of civil liability for high-altitude throwing damage should refer to the actual user of the building at the time of the infringement. Here we believe that "building user" must meet two conditions: one is timeliness, that is, the building user at the time of the infringement. The second is the possession of the dominant, that is, the actual use of the building. The "building user" who wants to be the main body responsible for the high-altitude parabolic damage must meet the above two conditions. When the "building user" carries out activities in the building, controls and manages the building and the objects in the building, and the damage caused by throwing objects and falling objects in the building, and it is impossible to determine the specific infringer, it is in line with the practical experience and due logic of social life to determine the possible infringer among the actual users of the building at the time of the infringement. The scope of "building user" shall include the owner, lessee, borrower and other people who use the building. Whether the property service company belongs to the building user should depend on the specific situation. In general, the property service company only signs a contract with the owner to be responsible for the management and service of the property, and does not occupy or control the building itself. It belongs to the building user. However, if the property service company actually occupies and uses the building, it also belongs to the building user.

Chapter III Responsibility in the act of high-altitude parabolic damage.

The Nature of Responsibility in 1. Parabolic Damage

Article 87 of the Tort Liability Law stipulates that the civil liability caused by the act of throwing objects from high altitude is compensation in nature, which is different from the damages stipulated in other provisions of the Tort Liability Law. Compensation and compensation are two different categories, compensation is from the humanitarian point of view, in the amount of compensation for the loss of no prescribed degree, its non-equivalence is only to supplement the victim's loss, the pursuit of justice. Compensation is punitive, which embodies the principle of "equivalent exchange", which requires that the victim's loss be fully filled, and the pursuit is to prevent the recurrence of illegal incidents.

The liability under article 87 of the Tort Liability Act is not a liability for damages. The reason why the liability for damage caused by high-altitude parabolic acts is defined as a compensatory liability is determined by the basis of its liability. As far as the damage caused by high-altitude throwing objects is concerned, the person who throws the object is individual and definite. According to the principle of his own liability in the tort liability law, anyone should be liable for damages caused by his own fault, and others are not obliged to be responsible for it. However, in the case of high-altitude throwing damage, if the victim's damage is not compensated, it is extremely unfair to the victim, which has greatly destroyed the normal order of the whole society. At the same time, buildings, as places where people live and engage in activities, are not dangerous in themselves, and people living and engaging in activities in buildings are not creating danger. For damage caused by high-altitude parabolic acts, liability cannot be determined in accordance with the rules of risk liability, and all building owners or managers or users shall bear the liability for damages. From the first chapter of the legal basis for the protection of victims in the act of throwing objects from high altitude, it is reasonable and fair to stipulate that "the user of the building who may cause harm" should give appropriate compensation to the victims. It is precisely because of the uncertainty of the responsible person and the basis of responsibility that the law defines the nature of its liability as compensation liability.

2. the way of responsibility in the act of high altitude parabolic damage

Article 87 of the Tort Liability Law simply defines the nature of the civil liability arising from the act of throwing objects from high altitude as compensation liability, but does not provide for the manner of responsibility borne by the subject of responsibility. Is it joint and several liability or share liability for "building users who may cause harm"? This article advocates that it should be a share of liability, because:

First, in theory, to establish joint and several liability, there must be a basis for joint and several. This basis is either the joint and several of the facts or the joint and several of the legal relationship. In the case of damage caused by high-altitude throwing, there is only one perpetrator of the act, and it is impossible for this person to have contact with other non-throwing persons, and there is no de facto association. At the same time, there is no legal relationship between the perpetrator of the act and the other persons responsible, or between the persons responsible and the victim.

Second, setting the mode of responsibility as per share is conducive to protecting the interests of the weak among the "users of buildings who may cause harm" and reflecting social equity. According to the responsibility can fully take care of the "economically weak" among the "building users who may cause harm", and joint and several liability has the possibility of making any one household bear all the responsibilities. In this way, if the "vulnerable person" bears all the responsibilities, but cannot recover the situation from others, it is not good for him. At the same time, if the "vulnerable person" is not the real perpetrator of the harmful behavior, it is extremely unfair to him. In the case of damage caused by a high-altitude parabolic act, except for the perpetrator who committed the parabolic act, the other distinguished owners are required to bear joint and several liability if they do not constitute a tort at all, and there is a trade-off between the protection of the rights of the victim and the protection of the freedom of the distinguished owner.[10]

Third, the introduction of share-based responsibility makes it clear how much responsibility the duty-bearers bear, and there is no problem of recovery among the duty-bearers, which can reduce unnecessary neighborhood disputes. At the same time, according to the responsibility can also urge people to strengthen self-restraint, to put an end to similar high-altitude parabolic conditions;

In the share of responsibility borne by the "building users who may cause harm", the "share" is to share the responsibility on a household basis. The specific calculation is to first deduce all the "building users who may cause harm" in the litigation case, and then divide the loss of the victim by all the estimated "building users who may cause harm".

3. the scope of liability in the act of high-altitude parabolic damage

The scope of liability of the "potential user of the building" depends on the determination of the scope of the damage suffered by the victim. The scope of damage should be no different from the determination of damage in general infringement. For this reason, there is a question of whether to compensate the victim for his mental damage. This paper argues that there is no need for compensation for mental damage. Because:

First, in the civil liability caused by the act of throwing objects from high altitude, the protection of the victim itself is based on making the presumed perpetrator bear the responsibility, and it is enough to fill the material loss of the victim.

Second. Compensation for the material loss of the victim is already "unfair" to some responsible persons, and making them responsible is the result of legal consideration of social interests and sympathy for the weak. If we let them bear the moral damage of the victims, then it is absolutely unfair to these responsible persons, which is not conducive to the compensation for the material loss of the victims.

Third, extending the scope of loss to the victim to moral damage will cause people to distrust the law. If the law stipulates that compensation must also be given to the victim's mental damage, then people will think that the legal provisions are too strict, "severe punishment is evil law, and evil law is illegal and cannot be used as the basis for hearing cases."[11]At the same time, it will hurt people's trust in the law.

Chapter IV Exemptions from Liability in High-altitude Parabolic Acts

The act of throwing objects from high altitude makes people such as "building users who may cause harm" become responsible. While the law identifies some "innocent" persons as duty bearers, it should also provide some exemptions for these "innocent" persons. Article 87 of the Tort Liability Law provides guidance on the reasons for exemption, that is, "except for those who can prove that they are not infringers". If the responsible person wants to prove that he is not an infringer, he must prove that he does not have the possibility of carrying out the act of throwing objects from high altitude, that is, to prove that he does not have the conditions or ability to carry out the infringement. In this article, it is advocated that the exemption of "building users who may harm" has the following circumstances:

First, to prove that they are limited to the conditions or capabilities of the implementation of high-altitude parabolic behavior. This exemption may include: proving that you were not in the building at the time of the damage, proving that you were not in the position where you were unable to carry out the act of throwing objects from high altitude, proving that there was no possibility of throwing objects or falling objects in your home, such as the house used by the user of the building in the direction of the damage, or the windows were equipped with guardrails with narrow gaps, throwing objects or falling objects could not pass, etc.

Second, to prove that one is limited to the conditions or ability to make the thrown or falling object reach the position where the damage occurred even if one has committed a high-altitude parabolic act. For example, if you live in a location that is contrary to the site of the damage or too far away to throw or fall the object to the site of the damage. For another example, the user of the building is a disabled person or a person who has difficulty in taking care of himself, or there are only infants and young children in the home at the time of the damage incident, which is limited to their ability to throw or fall objects to the scene where the damage occurred.

Third, it is proved that although he has carried out the act of causing damage from high altitude, there is no causal relationship between his behavior and the occurrence of damage. For example, one's own parabolic or falling objects are blocked during the fall and are still suspended in mid-air.

Of course, in the six defenses stipulated in Chapter III of the Tort Liability Law, the third party cause and force majeure also apply to the compensation liability caused by the high-altitude parabolic damage.

Conclusion

Wang Zejian said: "Tort law should not be the only or main system to fill the damage, but should coexist with other systems and shoulder different tasks." In the act of throwing objects from high altitude, because it is impossible to identify the specific perpetrator of the act, the law shifts the risk to people such as "the user of the building who may cause harm. "The injury is not staying in place", but the injury needs to be repaired in the end. Therefore, in the conclusion of this paper, it is suggested that this kind of injury should be compensated by the insurance system.

Insurance, as an economic means used by human beings to cope with and deal with hazards, is a form of mutual assistance to compensate financially for losses caused by specific hazards or accidents. The principle is that the majority of people each contribute a small amount to an insurance fund, which, in the event of a certain danger to one of them, allocates a portion of the funds gathered to the injured person to cover his or her loss.[12]The loss after the liability of the "building user who may cause harm" can be covered by the compulsory liability insurance system. The compulsory liability insurance can be purchased by the building user and collected by the property management company on its behalf. After the occurrence of a high-altitude throwing injury, the property management company can settle the claim on its behalf.[13]

This article won the first prize of 2011 Jinan lawyer business paper selection

References:

Monographs literature:

[1][English] Barry Nicholas: An Introduction to Roman Law (2nd Edition), translated by Huang Feng; Law Press, 2004.

[2] Yang Lixin, Tort Liability Law, Law Press, 1st edition, March 2010.

[3] Liu Shiguo, "Research on Major and Difficult Issues in Tort Liability Law", China Legal Publishing House, 2009 edition.

[4] Xu Weidong, ed., Insurance Law, Science Press, 2004.

Journal Literature:

[1] Ma Changhua: "Legal Relief for Damage Caused by Falling from a Height", Law Forum, No. 2, 2010.

[2] Peng Chengxin: The Debt of Compensation for Loss: A New Type of Statutory Debt--<侵权责任法>Comment on Article 87, Journal of Ocean University of China, No. 6, 2010.

[3] Jia Xianfang, "Review and Reflection on the Common Dangerous Behavior System Applicable to High-altitude Parabolic", Journal of Xinxiang Institute of Education, No. 3, 2008.

[4] Wang Baochun, "On the Responsibility of High-altitude Parabolic-Responsibility under the Compromise of Justice Value", in Legal System and Society, No. 10, 2009.

[5] Wang Chen: "On the Game Integration of Value Judgment and Legal Logic in Disputes over Damage from Building Throwing-A Commentary<侵权责任法>Article 87, Shandong Trial, No. 4, 2010.

[6] Li Qinghai and Wang Xi, "On the Infringement of Parabolic at High Altitude", in Golden Card Project, No. 12, 2010.

Network Information:

[1] Wang Zhu and Zhao Yao: "On the Moral Compensation Responsibility for Damage caused by Throwing and Falling of Buildings-Also on the Establishment of Compulsory Liability Insurance System for Throwing and Falling of Buildings", China Paper Download Center> Law> Civil Law> Text, Accessed Date: February 8, 2011, Website http: // www.

Thesis information:

[1] Pan Sijing, "Research on Tort Liability of High-altitude Parabolic", Dalian Maritime University, 2009 Master's Degree Thesis.

[1]See: [English] Barry Nicholas: An Introduction to Roman Law (2nd ed.), translated by Huang Feng; Law Press, 2004, p. 240.

[2]See: Ma Changhua: "Legal Remedies for Damage caused by Falling from a Height", Law Forum, No. 2, 2010, pp. 26-27.

[3]Article 126 of the General Principles of the the People's Republic of China Civil Law: If a building or other facilities, as well as the shelving or hanging objects on the building, collapse, fall off, or fall and cause damage to others, its owner or manager shall bear civil liability, Except for those who can prove that they are not at fault. Supreme Court on Implementation<中华人民共和国民法通则>Opinions on Several Issues "Article 155: If the collapse of stacked objects causes damage to others, if the parties are not at fault, they shall be dealt with as appropriate in accordance with the principle of fairness. Article 16 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Personal Injury Compensation

The provisions of Article 126 of the General Principles of the Civil Law shall apply, and the owner or manager shall be liable for compensation, except for those who can prove that they are not at fault: (1) artificially constructed structures such as roads, bridges, tunnels and other artificially constructed structures cause damage due to defects in maintenance and management; damage caused by the rolling, slipping or collapse of (II) stacked objects; damage caused by the dumping of (III) trees, breaking or falling fruits. In the case of item (I) of the preceding paragraph, if damage is caused by design or construction defects, the owner, manager and the designer and constructor shall bear joint and several liability.

[4]See: Pan Sijing: "Research on the Tort Liability of High-altitude Parabolic", Dalian Maritime University, Master's Thesis, 2009, p. 2.

[5]See: Peng Chengxin: "The Debt of Compensation for Loss: A New Type of Statutory Debt--<侵权责任法>Comment on Article 87, Journal of Ocean University of China, No. 6, 2010, pp. 43-45.

[6]See: Yang Lixin: Tort Liability Law, Law Press, 1st edition, March 2010, p. 581.

[7]See: Jia Xianfang: "Review and Reflection on the Application of Common Dangerous Behavior System to High-altitude Parabolic", Journal of Xinxiang Institute of Education, No. 3, 2008, p. 73.

[8]See: Wang Baochun: "On the Responsibility of High-altitude Parabolic-Responsibility under the Compromise of Justice Value", Legal System and Society, No. 10, 2009, p. 364.

[9]See: Wang Chen: On the Game Integration of Value Judgment and Legal Logic in Disputes over Damage Caused by Building Throwing-A Commentary.<侵权责任法>Article 87, Shandong Trial, No. 4, 2010, p. 102.

[10]See: Li Qinghai and Wang Xi: "On the Infringement of High-altitude Parabolic", in Golden Card Project, No. 12, 2010, p. 2.

[11]See: Liu Shiguo: "Research on Major Difficult Issues in Tort Liability Law", China Legal Publishing House, 2009 edition, p. 85.

[12]See: Xu Weidong, ed.: Insurance Law, Science Press, 2004 edition, pp. 21-22.

[13]See: Wang Zhu and Zhao Yao: "On the Moral Compensation Responsibility for Damage Caused by Throwing and Falling in Buildings-Also on the Establishment of Compulsory Liability Insurance System for Throwing and Falling in Buildings", China Paper Download Center> Law> Civil Law> Text, Accessed Date: February 8, 2011, Website http: // www.studa.net/minfa/

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