Chinese Tort Law:

Theory and Practice

Rui Liu associate professor

Chinese Academy of Governance

liurui@nsa.gov.cn RL323@law.georgetown.edu

86-13520933885,703-270-8295(U.S)

Chinese Tort Law: Basic information• Date Issued: 12-26-2009• Effective date: 07-01-2010• 92 articles • 12 Chapters

Table of Contents• Chapter I General Provisions• Chapter II Constituting Liability and Methods of Assuming Liability• Chapter III Circumstances to Waive Liability and Mitigate Liability• Chapter IV Special Provisions on Tortfeasors• Chapter V Product Liability• Chapter VI Liability for Motor Vehicle Traffic Accident• Chapter VII Liability for Medical Malpractice • Chapter VIII Liability for Environmental Pollution• Chapter IX Liability for Ultrahazardous Activity• Chapter X Liability for Harm Caused by Domestic Animal• Chapter XI Liability for Harm Caused by Object• Chapter XII Supplementary Provision

I. Background: reasons that China enacted Tort Law in 2009

II. Main changes in Chinese tort law

III. The challenges and problems in practice

I. Background: reasons that China enacted Tort Law in 2009

A. Legislation goal: build Chinese legal system before 2010

• Civil code • Marriage Law(1981) • Law of Succession (1985)• General Principles of the Civil Law(1986) • Contract Law (1999)• Property Law (2007)• Tort Law (2009)• Law on Choice of Law for Foreign-related Civil Relationships

(2010)

B. Practical needs Before adoption of the Tort Law in 2009, there were more

than forty laws, administrative regulations and Supreme Court Interpretations related to tort liability. However, these regulations were not comprehensive, and some regulations were unreasonable, even in conflict with each other. Some irregularities included:

• No law to protect the right to privacy.• No law to regulate network user or internet service provider

liability.• Compensation criteria: big disparity between urban and rural

residents.• Medical malpractice liability: flawed relationship between doctor

and patient.• Product liability: no allowance for punitive compensation.• Ultra-hazardous activity liability: high-speed train, nuclear plant• Building liability: made stark by the Sichuan earthquake in 2008.

II. Main changes in Chinese tort law

A. Compensation CriteriaArticle 17: Where the same tort causes the deaths of

several persons, a uniform amount of death compensation may be determined.

B. Product liability Article 47: Where a manufacturer or seller knowing

any defect of a product continues to manufacture or sell the product and the defect causes a death or any serious damage to the health of another person, the victim shall be entitled to require the corresponding punitive compensation.

C. Medical malpractice liabilityArticle 54: Where a patient sustains any harm

during diagnosis and treatment, if the medical institution or any of its medical staff is at fault, the medical institution shall assume the compensatory liability.

Article 56: Where the opinion of a patient or his close relative cannot be obtained in the case of an emergency such as rescue of a patient in critical condition, with the approval of the person in charge of the medical institution or an authorized person in charge, the corresponding medical measures may be taken immediately.

D. Liability for Environmental Pollution Article 66: Where any dispute arises over an

environmental pollution, the polluter shall assume the burden to prove that it should not be liable or its liability could be mitigated under certain circumstances as provided for by law or to prove that there is no causation between its conduct and the harm.

Article 67: Where the environmental pollution is caused by two or more polluters, the seriousness of liability of each polluter shall be determined according to the type of pollutant, volume of emission and other factors.

E. Liability for Ultrahazardous Activity Article 70: Where a nuclear accident occurs to a civil

nuclear facility and causes any harm to another person, the operator of the civil nuclear facility shall assume the tort liability unless it can prove that the harm is caused by a situation such as war or by the victim intentionally.

Article 71: Where a civil aircraft causes any harm to another person, the operator of the civil aircraft shall assume the tort liability unless it can prove that the harm is caused by the victim intentionally.

F. Liability for Harm Caused by Object Article 86: Where any building, structure or facility collapses,

causing any harm to another person, the construction employer and contractor shall be liable jointly and severally. After making compensation, the construction employer or contractor shall be entitled to be reimbursed by other liable persons, if any.

Article 87: Where any object thrown out of a building or falling down from a building causes any harm to another person and it is hard to determine the specific tortfeasor, all the users of the building who could possibly have committed the tort, except for those who can prove that they are not the tortfeasor, shall make indemnity.

III. Challenges and problems in practice

A. The relationship between the Tort Law and Social insurance, private insurance

• Civil servants, employed workers and unemployed people, and rural residents are covered by different medical insurance systems. In many instances, medical insurance of rural residents does not cover accidental medical costs.

• The majority of Chinese people have no private insurance, especially low-income individuals.

• Among all tort cases, about 30% are motor vehicle tort cases. Among all motor vehicle tort cases, around 50% of tortfeasors are judgment-proof because they lack the ability to pay compensation.

B. Compensation criteria: reasonable?

C. Punitive compensation: how much?Example of specified punitive amount:

Food Safety Law Article 96: A violator of this Law who causes personal,

property or other damages shall bear compensation liability. Besides claiming damages, a consumer may require the producer, who produces food that does not conform to food safety standards, or the seller who knowingly sells food which does not conform to the food safety standards, to pay 10 times the amount paid by the consumer.

D. The ability of the patient to prove the fault of doctor and the causal relationship between damage and the doctor’s conduct.

F. The relationship between Tort Law and other laws and regulations.

Thank you!