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2018 | Buch

Prolegomenon Kapitel lesen Erstes Kapitel lesen

Legislation of Tort Liability Law in China

verfasst von: Prof. Dr. Xinbao Zhang

Verlag: Springer Singapore

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This book studies the fundamental conflicts between the protections on the legal rights and interests of victims and the freedom of infringers to act first. It is divided into four parts, the first of which explores the relevant legal methodology in order to provide possible solutions to difficult problems in Chinese tort liability law. Secondly, it puts forward a range of suggestions on how to resolve key issues in China’s torts liability law, including the general provisions; the provisions concerning the fault principle; the provisions of the non-fault principle; the special liability relation; damages; and defenses and related issues. Thirdly, the book addresses major institutional issues, including: the theory of consensus force; joint infringements; and operators’ duty of care; as well as several key relations: between the right to claim insurance compensation and the right to claim compensation for personal injury; between the right to claim tort liability and the right to exercise property rights; and between the right to claim tort liability and the right to reject unjust enrichment. Further aspects in this section include compensation for death; mental damages; pure economic loss and compensation; punitive compensation; and compensation for road traffic accidents. Lastly, the book explores special issues in tort liability law, e.g. the infringement of media rights, and the specific tort liability in various administrative laws and regulations.

Inhaltsverzeichnis

Frontmatter
Chapter 1. Prolegomenon
Abstract
In the process of enacting draft legislation, significant differences between China’s government departments and jurisprudential circles were noted in several specific issues.
Xinbao Zhang
Erratum to: Legislation of Tort Liability Law in China
Xinbao B. Zhang

Suggestions on Amending the Draft of Tort Liability Law

Frontmatter
Chapter 2. The Suggestions on Amending the Second Draft of Tort Liability Law for Examination and Approval
Abstract
The Draft of the Tort Liability Law of the People’s Republic of China (The Second Draft for Examination and Approval) has been submitted by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress to the Standing Committee of the National People’s Congress for deliberation.
Xinbao Zhang
Chapter 3. The Several Suggestions on Enacting the Tort Liability Law
Abstract
After enacting the Property Rights Law, the focus of legislation in the civil law regime has changed to the tort liability law.
Xinbao Zhang

Research on the Legislative System of the Tort Liability Law

Frontmatter
Chapter 4. On Several Technical Problems Concerning Enactment of Civil Code
Abstract
In recent years, it has become common practice for legal scholars to study how to enact the civil code from the perspective of ideas and systems. However, they seldom discuss those technical problems arising in this process.
Xinbao Zhang
Chapter 5. The General Provision of the Tort Liability Law
Abstract
Although Chinese legal scholars have further researched the theories of torts in recent years, it is difficult to find any books or articles concerning the general provisions of the Tort Liability Law.
Xinbao Zhang
Chapter 6. The Legislation Pattern of Tort Law: General Provisions + Comprehensive Enumeration
Abstract
Tort Liability Law. Typical legislation patterns of Tort Liability Law in civil law legal system are the general provision pattern represented by French Law and the enumeration pattern represented by German Law.
Xinbao Zhang
Chapter 7. On the Legislative System of the Tort Liability Law
Abstract
The legislative system issue of the tort liability law refers to the correlative issue between the legislative mode, inner structure, and the codification of the tort liability law and special tort liability provisions of tort liability stipulated by other laws rather than the civil code.
Xinbao Zhang
Chapter 8. On the Degree of Codification of the Tort Liability Law
Abstract
In recent years, there have been heated discussions in the Chinese legal field on the legislation of tort law, a constitutive part of the civil code, and certain consensus has been achieved.
Xinbao Zhang

Institutional Construction

Frontmatter
Chapter 9. On the Causative Potency Theory in Tort Law
Abstract
In China, there are neither specific stipulations in law nor academic treatises in the academic circle about causative potency theory, which has been referred to only by some particular administrative regulations and judicial interpretations.
Xinbao Zhang
Chapter 10. Nine Treatises on the Liability for Joint Tort
Abstract
Although article 130 of the General Principles of Civil Law of the People’s Republic of China (hereinafter referred to as the General Principles of Civil Law) states, “if two or more persons jointly infringe upon another person’s rights and cause him damage, they shall bear joint and several liability”, it gives no clear provisions of the definition and constitutive elements of joint tort.
Xinbao Zhang
Chapter 11. Operators’ Duty of Safety Protection on Business Premises
Abstract
In recent years, many incidents have been reported about the infringement on consumers’ personal and property rights and interests due to the safety matters on the business premises.
Xinbao Zhang
Chapter 12. On Burden of Proof in Medical Negligence
Abstract
Where there exists a medical contract between the patient and the doctor, if the doctor’s negligence leads to personal harms to the patient, the doctor’s behavior constitutes the non-performance of obligations due to his failure of proper fulfillment of contractual obligations and his negligence also constitutes the infringement on the patient’s personal rights including the right to life, right to body, and right to health.
Xinbao Zhang
Chapter 13. The Relation Between the Right to Claim for Compensation from Work-Related Injury Insurance and the Right to Claim Compensation for Personal Injury
Abstract
Industrial accident is an inevitable problem in modern society. In general, the personal injury which workers suffered from industrial accidents and occupational diseases is usually referred to as work-related injury. Because industrial accidents encroach on the personal rights (life right, health right, or body right) of laborers, it is undoubtedly one of the missions of tort liability law to recover the loss of the victim.
Xinbao Zhang
Chapter 14. The Relation Between Right to Request Tort Liability and Right to Request Property Rights
Abstract
According to the national lawmaking program, China would establish a complete socialist legal system, and the establishment of the Civil Code is the important part of this legal system. In 1999, the promulgation and Implementation of the Contract Law indicated that the beginning of the Civil Code was successful. However, at the time of legislating the property rights law, many disputes emerged, some disputes were related to politics, while the others were related to lawmaking.
Xinbao Zhang
Chapter 15. The Relation Between Right to Claim for Tort and Right to Claim for Restitution of Unjust Enrichment
Abstract
The basis for scientific and reasonable legislation is definitely the maturity of theoretical research. Civil law is law of rights, and the civil law system is in fact a system of rights. In order to realize rights or to maintain the fulfillment of rights, “each right possesses or may extend certain right of claim”.
Xinbao Zhang
Chapter 16. On the Compensation for Death Caused by Torts
Abstract
In recent years, the compensation for death caused by tort has aroused interest in the legal profession and even in the public. It is also known as the compensation to the deceased for the damaging consequence led by tort or quasi-tort of the infringer which results in the death (hereinafter referred to as “death caused by tort”) through compensation based on tort liability.
Xinbao Zhang
Chapter 17. On the Compensation for Mental Damage Due to Death by Infringement
Abstract
In the case where the death is caused by injurious action or quasi-tort (hereafter referred to as case of death by infringement), it is an array of issues far from being resolved on paper and in legislative or judicial practice in terms of whether the victim can claim compensation for infliction of mental damage, in which types of cases of death by infringement who can claim the compensation, what are the compensation standards and how is the distribution of compensation once one manages to obtain it.
Xinbao Zhang
Chapter 18. Pure Economic Loss and Its Compensation Rules
Abstract
In modern society, interpersonal relationship is growing complicated day by day and the consequences of all kinds of behavior are correlated. As the tool to adjust the facts of life, law also becomes more apt to be changed because of the complexity of social life, thus breeding correspondingly specific legal concepts as tools to adapt itself to the demand of legal adjustment.
Xinbao Zhang
Chapter 19. On Legislation of Punitive Damages
Abstract
The system of punitive damages is a special system of civil damages under the U.S. legal system, which is quite different from the system of compensatory damages. Punitive damages are paid in excess of the plaintiff’s actual injuries and are intended to punish and deter serious infringement. Yet, it has always been a controversial system under the common law legal system since it may challenge the constitutionality and it allows excessive compensation. Although it has produced certain influences on the civil law legal system, all these influences are limited in theoretical discussions, and it has not been widely recognized by those countries since they apply the principle of parity compensation in the area of civil damages.
Xinbao Zhang
Chapter 20. Assumption of Compensation Liability by the Motor Vehicle: On the Compensation Obligor in Road Traffic Accidents
Abstract
The first paragraph of article 76 in the Law of the People’s Republic of China on Road Traffic Safety revised on December 29, 2007 stipulates that where a motor vehicle meets with a traffic accident and causes personal injury or death or any property loss, the insurance company shall pay indemnity within the scope of limit of the compulsory third party liability insurance liability for the motor vehicle.
Xinbao Zhang

Controversial Issues

Frontmatter
Chapter 21. On Negative Theory of “News (Or Media) Infringements”
Abstract
Whether the “news infringement” or the “media infringement” should be stipulated in Tort Law is quite a controversial issue. The author advocates that the “news infringement” or the “media infringement” should not be written into the articles of Tort Law. This paper is attempting to make a comprehensive elaboration on this proposal and turns to fellow scholars for advice, especially those who hold an affirmative attitude to the “news infringement” or the “media infringement”.
Xinbao Zhang
Chapter 22. Inappropriateness of the Stipulation of Specific Tort Liability in Administrative Regulations
Abstract
It is a common phenomenon in the legal life of China for the administrative legislation to adjust civil legal relation.
Xinbao Zhang
Metadaten
Titel
Legislation of Tort Liability Law in China
verfasst von
Prof. Dr. Xinbao Zhang
Copyright-Jahr
2018
Verlag
Springer Singapore
Electronic ISBN
978-981-10-6961-1
Print ISBN
978-981-10-6960-4
DOI
https://doi.org/10.1007/978-981-10-6961-1

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