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Zhu Wang April 16 th , at Cornell Law Scholl emailtozhu@gmail

European Canvas, American Colors, Chinese Spirit --The Making of the Grand Scroll of the Tort Liability Law of China. Zhu Wang April 16 th , at Cornell Law Scholl emailtozhu@gmail.com Visiting Scholar of Clarke Program in East Asian Law and Culture of Cornell Law School.

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Zhu Wang April 16 th , at Cornell Law Scholl emailtozhu@gmail

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  1. European Canvas, American Colors, Chinese Spirit--The Making of the Grand Scroll of the Tort Liability Law of China • Zhu Wang • April 16th, at Cornell Law Scholl • emailtozhu@gmail.com • Visiting Scholar of Clarke Program in East Asian Law and Culture of Cornell Law School. • Ph.D. Candidate of Civil and Commercial Law, Law School of Renmin University of China. • Grantee of the Fulbright China PhD. Dissertation Research Program.

  2. Preface:Drafting the Tort Liability Law of China in the Golden Age of Torts Law • The past 20 yearsand the coming decadeis a golden age of tort law, as U.S., Europe and China, thethree major economies in the 21st century, are drafting or restating their new tort law almost simultaneously.

  3. Preface:Drafting the Tort Liability Law of China in the Golden Age of Torts Law • The American Law Institute, Restatement of Law, Tort, Third: • Products Liability, 1991-1998 • Apportionment of Liability, 1993-2000 • Liability for Physical and Emotional Harm, 1996- 2009 • Economic Torts and Related Wrongs, 2004- now

  4. Preface:Drafting the Tort Liability Law of China in the Golden Age of Torts Law • European Centre of Tort and Insurance Law (ECTIL) & European Group on Tort Law (EGTL) published Principles of European Tort Law: Text and Commentary in 2005. • The Study Group on a European Civil Code (SGECC) published the rule section of Non-Contractual Liability Arising out of Damage Caused to Another in 2006. Its official comment is planned to be published in July 2009.

  5. Preface:Drafting the Tort Liability Law of China in the Golden Age of Torts Law • The Standing Committee of National People's Congress (NPC) of China began its legislative work of Tortious Act Lawin 1999, the year when Contract Law of China was promulgated. • Since the promulgation of the Property Law of China in 2007, the core task of the legislative efforts of Civil Code of China is the Tort Liability Law.

  6. Modern American Colors, on A Traditional European Canvas, with Socialist Chinese Spirit. The Making of the Grand Scroll of Tort Liability Law of China

  7. A. A Brief Introduction to the Legal and Historical Background • 1.The Legal System of China is Statute Law • The main body of the legal system of China consists of: • (1)The Constitution; and • (2)Six Basic Laws: Civil Law, Criminal Law, Administrative Law, Civil Procedure Law, Criminal Procedure Law, Administrative Procedure Law; and • (3)Other laws concerned about social, economic and environment protection affairs. • Until now, there are 231 laws in force.

  8. A. A Brief Introduction to the Legal and Historical background • 1.The Legal System of China • The Civil Law system of China consists of seven statute laws: • (1) General Principles of Civil Law (1986) • (2) Property Law (2007) • (3) Contract Law (1999) • (4) Marriage Law (2001) • (5) Succession Law (1985) • (6) Adoption Law (1991) • (7) Tort Law (to be promulgated in 2010)

  9. A. A Brief Introduction of the Legal and Historical background • 2. Regimes of China in the 20th Century • Qing Dynasty: 1636- 1912 • Republic of China: 1912 - 1949 • People's Republic of China: 1949 - now

  10. B. 1908-2008: Four Phases of the Legislative Century of Tort Law of China • 1908-1949: Tort Law Rules in the Drafts of Civil Code from the Dusk of Qing Dynasty to the Dawn of P. R. China • 1950-1985: Tort Law Rules in the First Three Drafts of Civil Code of China • 1986-2002: Tort Law Rules in the General Principles of Civil Law of China and Related Interpretations of the Supreme People’s Court • 2003-now: Tort Liability Law as a Part of the Fourth Draft of Civil Code of China

  11. 1. 1908-1949: Tort Law Rules in the Drafts of Civil Code from the Dusk of Qing Dynasty to the Dawn of P. R. China • 1.1908-1910: Tort Law Rules in the Draft of Civil Code of Qing Dynasty • 2.1911-1925: Tort Law Rules in the Draft of Civil Code of Republic of China • 3.1929-1930: Tort Law Rules in the Civil Code of Republic of China

  12. 2. 1950-1985: Tort Law Rules in the First Three Drafts of Civil Code of China • 1.1954-1956: Tort Law Rules in the First Draft of Civil Code of China • 2.1962-1964: There were No Tort Law Rules in the Second Draft of Civil Code of China • 3.1979-1982: Tort Law Rules in the Third Draft of Civil Code of China

  13. 3. 1986-1999: Tort Law Rules in the General Principles of Civil Law of China and Related Interpretations • 1.General Principles of the Civil Law of China, Chapter VI. Civil Liability • 2.Related Interpretations of the Supreme People’s Court of China

  14. 3. 1986-1999: Tort Law Rules in the General Principles of Civil Law of China and Related Interpretations • 1. General Principles of the Civil Law of China, Chapter VI. Civil Liability • Section 1. General Provisions (Article 106-110) • Section 2. Civil Liability for Breach of Contract (Article 111-116) • Section 3. Civil Liability for Infringement of Rights (Article 117-133) • Section 4. Ways of Bearing Civil Liability (Article 134)

  15. 3. 1986-1999: Tort Law Rules in the General Principles of Civil Law of China and Related Interpretations • 1.General Principles of the Civil Law of China, Chapter VI. Civil Liability • Section 1. General Provisions (Article 106-110) • Article 106. [General Civil Liability Provision] • A citizen or legal person who breachs a contract or fail to fulfil other duties, shall bear civil liability. • A citizen or legal person who through their fault infringes on state or collective property, or the property or the body of another, shall bear civil liability. • Though without fault, if the law stipulates that tort liability should be born, [the actor] shall bear civil liability.

  16. 3. 1986-1999: Tort Law Rules in the General Principles of Civil Law of China and Related Interpretations • 1.General Principles of the Civil Law of China, Chapter VI. Civil Liability • Section 3. Civil Liability for Infringement of Rights (Article 117-133) • 117-120, Liability for Infrigment on Property Right, Intellectual Property Rights, Personal Injury, Personal Rights • 121-127 & 133: Liability for Government Torts, Products Liability, Ultrahazardous Activities, Environmental Pollution, Construction in Public Places, Damages Caused by Object, by Animals and Custodian • 128-131: Justifiable Self-defense, Emergently Avoiding Dangers, Joint Tort, Contributory Fault • 132: Liability Based on Fairness

  17. 3. 1986-1999: Tort Law Rules in the General Principles of Civil Law of China and Related Interpretations • 2.Related Interpretations of the Supreme People’s Court of China • 1) Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (For Trial Implementation) (1988) • 2) The Explanation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation (1993) • 3) The Interpretation of the Supreme People’s Court on Several Issues about the Trial of Cases Concerning the Right of Reputation (1998) • 4) Interpretation of the Supreme People's Court of Some Issues concerning the Trial of Cases on Compensation for Electric Shock Personal Injury (2001) • 5) Interpretation of the Supreme People's Court on Problems regarding The Ascertainment of Compensation Liability for Emotional Damages in Civil Torts (2001) • 6) Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury (2004)

  18. 4. 2000-now: Tort Liability Law as A Part of the Fourth Draft of Civil Code of China • 1.2000-2002: Tort Liability Law as Title Eight of the First edition of the Fourth Draft of Civil Code of China • 2.2003-2008: The Legislative work of the Second Edition of the Draft of Tort Liability Law of China • 3.2009-2010: Tort Liability Law is planned to be promulgated by the 3rd Session of the 11th NPC in March 2010

  19. 4. 2000-now: Tort Liability Law as A Part of the Fourth Draft of Civil Code of China • Draft of Civil Code of the People’s Republic of China (Dec. 17th , 2002),Title Eight. Tort Liability Law (68 Articles) • Chapter I. General Provisions • Chapter II. Compensation for Harm • Chapter III. Defenses • Chapter IV. Liability for Troubles Caused by Motor Vehicles • Chapter V. Environment Pollution Liability • Chapter VI. Products Liability • Chapter VII. Liability for Ultrahazardous Activity • Chapter VIII. Liability for Damages Caused by Animals • Chapter IX. Liability for Damages Caused by Objects • Chapter X. Special Provisions regarding the Subject of Tort Liability

  20. 4. 2000-now: Tort Liability Law as A Part of the Fourth Draft of Civil Code of China • Tort Liability Law of China (The second officially discussed edition, Dec. 21st, 2008. (88 Articles) • Chapter I. General Provisions • Chapter II. The Composition of Liability and Ways to Bear Liability • Chapter III. Circumstances of not Bearing Liability or Reducing Liability • Chapter IV. Special Provisions of Which Person Shall Bear Liability • Chapter V. Products Liability • Chapter VI. Liability for Motor Vehicle in Traffic Accident • Chapter VII. Liability for Damages Caused by Medical Treatment • Chapter VIII. Environmental Pollution Liability • Chapter IX. Liability for Ultrahazardous Activities • Chapter X. Liability for Damages Caused by Animals • Chapter XI. Liability for Damages Caused by Object • Chapter XII. Supplementary Provisions

  21. II.The European Canvas of Tort Liability Law of China • A. How European Tort Law Affected Chinese Tort Law • 1.The indirect influences of civil laws of the former Soviet Union and socialist countries in Eastern Europe on that of China • 2.The indirect influences of civil law of Taiwan on that of Mainland China • 3.The direct influence of German and French civil law on that of China

  22. II.The European Canvas of Tort Liability Law of China • B.The European Canvas of Tort Liability Law of China • 1.Chinese Tort Law is Statute Law, not Common Law • 2.Dual Liability System: Liability Based on Fault and Liability Based on Danger • 3.Legislative Structure: General Clause and Enumeration

  23. II.The European Canvas of Tort Liability Law of China • B.The European Canvas of Tort Liability Law of China • Informal Case Law in China: • Only the cases published in the Gazette of Supreme People's Court of China may sometimes act as informal guidance. • From 1985 to 2008, the Gazette of Supreme People's Court of China has published 722 cases. • Among them, 190 cases are related to civil torts, taking up more than 25%.

  24. II.The European Canvas of Tort Liability Law of China • B.The European Canvas of Tort Liability Law of China • 2.Dual Liability System: Liability Based on Fault and Liability Based on Danger • Trichotomy in U.S tort law: negligence, intentional torts and strict liability • Dichotomy in European tort law: tort liability based on fault and tort liability based on danger • Dichotomy in Chinese tort law: fault liability and non-fault liability. • Fault Liability/ Negligence + Intentional Torts • Non-fault Liability/ Strict Liability

  25. II.The European Canvas of Tort Liability Law of China • B.The European Canvas of Tort Liability Law of China • 3.Legislative Structure: General Clause and Enumeration • General Clause: • 2nd Draft, Article 7. [fault liability] • One who infringes on another or the property of another through his fault, causes harm, shall bear tort liability. (fault liability) • Where the law presumes that a tortfeasor is at fault, if the tortfeasor cannot prove he himself to be not at fault, he shall bear tort liability. (presumed fault liability) • 2nd Draft Article 8. [non-fault liability] • Though the actor is not at fault, if the law contains provisions stipulating that tort liability should be borne, then those provisions shall govern.

  26. II.The European Canvas of Tort Liability Law of China • B.The European Canvas of Tort Liability Law of China • 3.Legislative Structure: General Clause and Enumeration • Detailed Enumeration of Torts: • 2nd Draft • Chapter V. Products Liability • Chapter VI. Liability for Motor Vehicle in Traffic Accident • Chapter VII. Liability for Damages Caused by Medical Treatment • Chapter VIII. Environmental Pollution Liability • Chapter IX. Liability for Ultrahazardous Activities • Chapter X. Liability for Damages Caused by Animals • Chapter XI. Liability for Damages Caused by Object

  27. III.The American Colors on Tort Liability Law of China • A. How the American Tort Law Affected Chinese Tort Law • 1. Translation of the black letters of The Second Restatement of Tort, published in Taiwan, 1986. • 2. Chinese Translation of A Concise Restatement of Torts, ed. by Prof. Abraham and The Third Restatement of Products Liability were published in 2006.

  28. III.The American Colors on Tort Liability Law of China • B. The American Colors on Tort Liability Law of China • 1. General Framework: The Independence of Tort Law • In theory: Prof. Liming Wang, published a very famous paper in 1997, The Doomed Division of Long-term Unification: On the Relation between Tort Law and Obligation Law • In legislation: Title VIII of the first edition of the fourth Draft of Civil Code of China at the end of 2002, changed the name of the law from Tortious Act Law to Tort Liability Law.

  29. III.The American Colors on Tort Liability Law of China • B. The American Colors on Tort Liability Law of China • 2.Specific Regulation: Punitive Damages in Special Conditions • Laws in force: • Article 49 of Law on Protection of Consumer's Rights and Interests of China (1993) stipulated a two times punitive damages • Article 96 of Law on Food Safety of China (2009) stipulated a ten times punitive damages

  30. III.The American Colors on Tort Liability Law of China • B. The American Colors on Tort Liability Law of China • 2.Specific Regulation: Punitive Damages in Special Conditions • Article 45 of the 2nd Draft of Tort Liability Law: • If the product are still being produced or sold with the good knowledge that it is defective, and causes harm to another's life or health, the victim has the right to claim for punitive damages according to the law.

  31. IV. The Chinese Spirit in Tort Liability Law of China • A. From “Tortious Act Law” to “Tort Liability Law” • 1.Widely Use of the Concept of "Liability” • The second draft consists of about6400 characters in 88 articles, includes 150 “liability“ , averagely speaking, 1.75 "liability" in every article • 1 "legal liability", 2 "civil liability", 61 "tort liability", 42 "compensatory liability“ • 13 "joint and several liability", 1 "secondary liability", 2 "corresponding tort liability", • 1 "liability for custody", 1 "non-fault liability", 6 "person who bears liability" and 20 other kinds of "liability".

  32. IV. The Chinese Spirit in Tort Liability Law of China • A. From Tortious Act Law to Tort Liability Law • 2.Eight Ways to Bear Tort Liability, Compensatory and Non-compensatory • 2nd Draft, Article 17. • (1) ceasing the infringement; • (2) removing obstacles; • (3) eliminating the danger; • (4) returning the property; • (5) restoring to original condition; • (6) compensating for loss; • (7) eliminating ill effects and rehabilitating reputation; • (8) making a full apology.

  33. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness” • General Principles of Civil Law of China (1986) • Article 132[Liability Based on Fairness] • If none of the parties is at fault in causing the harm, they may share civil liability according tothe actual circumstances.

  34. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness" • 1.The Socialist Origin of "Liability based on Fairness” • By referring to 1922 and 1964 Civil Code of Soviet Russia, it was a product of achievements of both 1950s’ and 1980s’ drafts of Civil Code of China • With socialist principles for fairness introduced from the Reform of former Yugoslavian Law of Obligation.

  35. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness” • 2. "No Exemption from Liability Even Without Fault!" • “According to the actual circumstances” means • 1) the extent of harm suffered by the victim • 2) the financial condition of the actor • 3) public opinions • 4) compassion of the society. • Mediation is usually pursued in solving the cases of this kind.

  36. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness” • 3."Liability based on Fairness" in the 2nd Draft • Article 1. In order to protect the legal rights and interests of civilian subjects, to clearly state tort liability, to guard against and to sanction tortious act, and to promote the social harmony and stability, this law is enacted.

  37. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness" • 3."Liability based on Fairness" in the Second Draft • Article 22. If neither the victim nor the actor is at fault in causing the harm, they may share compensatory liability according tothe actual circumstances.

  38. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness" • 3."Liability based on Fairness" in the Second Draft • Article 32, paragraph 1. If one with full legal capacity of act causes harm to another during temporarily lose of consciousness or being out of control, he shall bear corresponding tort liability according to his fault; if he is not at fault, he shall pay for appropriate relief to the victim according to his economic condition.

  39. IV. The Chinese Spirit in Tort Liability Law of China • B. Yesterday, Today and Tomorrow of "Liability based on Fairness” • 3."Liability based on Fairness" in the Second Draft • Article 83. If an object is thrown from within a building or something hanging on a building falls off, causing harm to another, and if the specific tortfeasor cannot be determined, those occupants of the building who may cause the harm shall bear compensatory liability, except those who can prove that he himself is not the tortfeasor. • Fact similar with: Larson v. St. Francis Hotel, 83 Cal.App.2d 210, 188 P.2d 513. (Res Ipsa Loquitur)

  40. V. The Fusion of European Canvas, American Colors and Chinese Spirit • A. Fast Developing Products Liability in Chinese Tort Law • 1. American Strict Liability Colors • General Principles of Civil Law (1986) • Article 122. If a substandard product causes property damage or personal injury to another, the manufacturer and seller shall bear civil liability according to law. If the transporter or storekeeper is responsible for the matter, the manufacturer or seller shall have the right to claim for compensation for its loss.

  41. V. The Fusion of European Canvas, American Colors and Chinese Spirit • A. Fast Developing Products Liability in Chinese Tort Law • 1. American Strict Liability Colors • Law on Product Quality of China (1993, amended 2000) • Article 43 . In case that defect in a product causing harm to body or property of another, the victim may claim against either the producer or the seller for compensation. If the liability shall be born by the producer of the product, and the seller of the product paid for the compensation, the seller of the product has the right to seek indemnity from the producer of the product. If the liability shall be born by the seller of the product, and the producer of the product paid for the compensation, the producer of the product has the right to seek indemnity from the seller of the product.

  42. V. The Fusion of European Canvas, American Colors and Chinese Spirit • A. Fast Developing Products Liability in Chinese Tort Law • 2.European Defense Canvas • Law on Product Quality of China, Article 41, paragraph 2. • If a producer can prove one of the following circumstances, it does not bear compensatory liability: • (1) the producer has not yet put the product into circulation; or • (2) at the time when the producer put the product into circulation, the injury-causing defect did not yet exist; or • (3) the state of scientific and technical knowledge at the time when the producer put the product into circulation was not such as to enable the existence of the defect to be discovered.

  43. V. The Fusion of European Canvas, American Colors and Chinese Spirit • A. Fast Developing Products Liability in Chinese Tort Law • 2.European Defense Canvas • EC Products Liability Directive (85/374/EEC), Article 7 • The producer shall not be liable as a result of this Directive if he proves: • (a) that he did not put the product into circulation; or • (b) that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards; or • …… • (e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; or

  44. V. The Fusion of European Canvas, American Colors and Chinese Spirit • A. Fast Developing Products Liability in Chinese Tort Law • 3. Chinese Joint and Several Liability in Food Safety Area • Law on Agricultural Product Quality and Safety (2006) • Article 54, paragraph 2. • Where an agricultural product sold in an agricultural products wholesale market is under the circumstance provided in the preceding paragraph, the consumer may claim against the agricultural products wholesale market for compensation; if the liability shall be born by the producer or seller, the agricultural products wholesale market is entitled to seek indemnity. The consumer may also directly claim against the producer or seller of the agricultural products for compensation.

  45. V. The Fusion of European Canvas, American Colors and Chinese Spirit • A. Fast Developing Products Liability in Chinese Tort Law • 3. Chinese Joint and Several Liability in Food Safety Area • Law on Food Safety (2009) • Article 52, paragraph 2. • If the sponsor of a centralized trade market, the lessor of counters or the organizer of a trade fair does not fulfill the duty provided in the preceding paragraph, and the food safety accident occurs in its market, shall bear joint and several liability.

  46. V. The Fusion of European Canvas, American Colors and Chinese Spirit • B. Latest Developments of Apportionment of Tort Liability in Chinese Tort Law • 1. European Enumeration of Special Joint Torts • 2nd Draft • Article 9. Multiple actors who commit joint tort, and cause harm to another, shall bear joint and several liability. • Article 10. [Instigation or Assistance] • Article 11. [Unidentified Tortfeasors Engaging Dangerous Activity] • Article 12. [Sufficient Cause]

  47. V. The Fusion of European Canvas, American Colors and Chinese Spirit • B. Latest Developments of Apportionment of Tort Liability in Chinese Tort Law • 2. American Apportionment of Liability • (a) "Directly Combined Acts” theory • Apportionment of Liability Restatement §26 Apportionment of Liability When Damages Can Be Divided by Causation • (b) Distinction between contribution and indemnity • Contribution: 2nd Draft, Article 16. • Indemnity: 2nd Draft, Article 41, 61 & 62. • (c)Apportionment of Liability in Several Liability • 2nd Draft, Article 13. In case that multiple actors' separate acts cause the same harm, if the extent of the responsibility can be determined, each shall respectively bear corresponding tort liability; if it is hard to be determined, they shall bear the compensatory liability equally.

  48. V. The Fusion of European Canvas, American Colors and Chinese Spirit • B. Latest Developments of Apportionment of Tort Liability in Chinese Tort Law • 3. Chinese Secondary Liability with Indemnity • Apportionment of Liability Restatement,§14 Tortfeasors Liable for Failure to Protect the Plaintiff from the Specific Risk of an Intentional Tort • A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person.

  49. V. The Fusion of European Canvas, American Colors and Chinese Spirit • B. Latest Developments of Apportionment of Tort Liability in Chinese Tort Law • 3. Chinese Secondary Liability with Indemnity • 2nd Draft, Article 35. paragraph 2: • If a third person's act causes harm to another at public places in the preceding paragraph, the third person shall bear tort liability. If the administrator fulfills his safety protection obligation, he shall not bear tort liability; but if the safety protection obligation has not been fulfilled, he shall bear corresponding tort liability.

  50. V. The Fusion of European Canvas, American Colors and Chinese Spirit • B. Latest Developments of Apportionment of Tort Liability in Chinese Tort Law • 3. Chinese Secondary Liability with Indemnity • According to article 6 of the Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury (2004): • 1. the victim shall first bring a law suit against the third person who actually caused the harm to him. • 2. if the third person flees, or is insolvent, the victim shall bring a second lawsuit against the obligor of safety protection. • 3. the obligor of safety protection may, after bearing the liability, claim indemnity from the third person.

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