Code Provisions and Practical Points

1. Article 1191, Paragraph 1 [Employer's Liability] If an employee of an employer causes damage to others while performing work duties, the employer shall bear tort liability. After the employer has borne tort liability, it may seek recovery from the employee who acted intentionally or with gross negligence.

Practical Points:

Article 1191, Paragraph 1, concerns the provisions on the liability of employers. This paragraph, based on Article 34 of the original 'Tort Liability Law,' adds provisions regarding the internal liability between employers and employees, clarifying that employers can seek recovery from employees who acted intentionally or with gross negligence after bearing liability for the tortious acts of employees performing work duties. The characteristics of employer liability are: (1) Employer liability is no-fault liability. This method of bearing liability is conducive to reducing or avoiding the occurrence of tortious acts by employers, promoting the improvement of technology and management levels of employers, and facilitating the effective protection of the legitimate rights and interests of victims, making it easier to realize the victim's right to claim damages. (2) Employer liability is premised on the tortious nature of the employee's performance of duties. There are two prerequisites for an employer to bear tort liability: first, the tortious act must be the act of the employee performing work duties; second, the employee's performance of duties constitutes a tort. (3) Employer liability is a separate liability. (4) The employer has the right of recovery after bearing tort liability. However, the employer can only seek recovery from employees who caused damage intentionally or with gross negligence, which reflects the principle of fault in internal claims relationships. If the employee is not intentionally or grossly negligent in causing the damage, but only generally or slightly negligent, or not at fault, even if the employee's act of causing damage constitutes a tort, the employer cannot seek recovery from the slightly negligent or non-negligent employee after bearing liability.

2. Article 1192 [Tort Liability in Individual Labor Relationships] Where a labor relationship is formed between individuals, and the party providing labor causes damage to others due to the labor, the party receiving labor shall bear tort liability. After the party receiving labor has borne tort liability, it may seek recovery from the party providing labor who acted intentionally or with gross negligence. If the party providing labor suffers damage due to the labor, the respective responsibilities shall be borne according to the fault of both parties.

During the provision of labor, if the act of a third party causes damage to the party providing labor, the party providing labor shall have the right to request the third party to bear tort liability and shall also have the right to request compensation from the party receiving labor. After the party receiving labor has provided compensation, it may seek recovery from the third party.

Practical Points:

Article 1192 concerns the provisions on tort liability in individual labor relationships. This article includes three scenarios: damage caused to others by the party providing labor, damage to oneself, and the party providing labor suffering infringement by a third party during the provision of labor. This article makes two amendments based on Article 35 of the original 'Tort Liability Law': first, it adds a provision that the party receiving labor has the right of recovery after bearing tort liability for causing damage to others by providing labor; second, it adds a provision on the liability for damage suffered by the party providing labor due to infringement by a third party.

Similar to Article 1191, Paragraph 1 of this article stipulates that the party receiving labor can only seek recovery from the party providing labor who acted intentionally or with gross negligence after bearing tort liability. In addition, although this clause resolves the internal claim issue between the party receiving labor and the party providing labor, in the external relationship, i.e., for the victim, the subject of tort liability is still solely the party receiving labor.

Paragraph 2 of this article also clarifies that if the act of a third party causes damage to the party providing labor, the party providing labor may request the third party to bear tort liability and may also request compensation from the party receiving labor. After the party receiving labor has provided compensation, it may seek recovery from the third party. It should be noted that this is 'request compensation from the party receiving labor' rather than 'compensation,' and the party receiving labor can also seek recovery from the third party after providing compensation.

3. Article 1198 [Liability of the Safety Guarantee Obligor]   Business operators and managers of business premises and public places such as hotels, shopping malls, banks, stations, airports, gymnasiums, and entertainment venues, or organizers of mass activities, who fail to fulfill their safety guarantee obligations and cause damage to others, shall bear tort liability.
If the act of a third party causes damage to others, the third party shall bear tort liability; if the business operator, manager, or organizer fails to fulfill their safety guarantee obligations, they shall bear corresponding supplementary liability. After the business operator, manager, or organizer has borne supplementary liability, they may seek recovery from the third party.

Practical Points:

Article 1198 concerns the provisions on the liability of the safety guarantee obligor. Compared to Article 37 of the original 'Tort Liability Law,' this article has two changes. First, it adds airports and gymnasiums to the list of typical public places and adjusts the expression of the subject of safety guarantee obligations from the original 'manager of public places' to 'business operators and managers of business premises and public places.' Second, it adds a provision that the subject of safety guarantee obligations has the right to seek recovery from the third party who committed the direct tortious act after bearing the corresponding supplementary liability.

It should be noted that, according to this article, both the direct and supplementary liability of the subject of safety guarantee obligations are premised on their failure to fulfill their safety guarantee obligations. If the subject of safety guarantee obligations has fulfilled their safety guarantee obligations, they can be exempted from liability. Therefore, the tort liability for violating safety guarantee obligations stipulated in this article is a fault liability. To determine whether safety guarantee obligations have been fulfilled, the following four aspects can be considered: (1) Legal standards. If laws and regulations directly stipulate the content of safety guarantees, the content stipulated in laws and regulations should be used as the standard and basis for judgment. (2) Industry standards. In the absence of clear provisions in laws and regulations, safety guarantee obligations should reach the usual duty of care that the same industry should reach. (3) Contract standards. Contractual standards are also a basis for judging whether the safety guarantee obligor has fulfilled its corresponding obligations. (4) The standard of a good manager. If the law does not stipulate a specific standard, whether safety guarantee obligations have been fulfilled can be determined according to the standard of a good manager.

Regarding the issue of whether the subject of safety guarantee obligations has the right of recovery, Paragraph 2 of this article clarifies that the subject of safety guarantee obligations can seek recovery from the third party after bearing the corresponding supplementary liability, based on the perspective that 'the third party is closer to the damage and is the ultimate responsible party.'

4. Article 1201 [Division of Liability for Third-Party Infringement in Educational Institutions]   If a person without civil capacity or with limited civil capacity suffers personal injury from a third party outside the kindergarten, school, or other educational institution during the period of study and life in the kindergarten, school, or other educational institution, the third party shall bear tort liability; if the kindergarten, school, or other educational institution fails to fulfill its management responsibilities, it shall bear corresponding supplementary liability. After the kindergarten, school, or other educational institution has borne supplementary liability, it may seek recovery from the third party.

Practical Points:

Article 1201 provides for the apportionment of liability in cases of tort by a third party within an educational institution. Compared to Article 40 of the original "Tort Liability Law", the main change in this article is the addition of the provision that "kindergartens, schools or other educational institutions that bear supplementary liability may seek recourse from the third party". In the case of tort by a third party as stipulated in this article, the tort liability borne by kindergartens, schools or other educational institutions for failing to fulfill their management duties is a form of indirect tort liability, and the form of liability is supplementary liability.

Kindergartens, schools or other educational institutions enjoy the right of recourse after assuming supplementary liability, which is consistent with the provisions of Article 1198 of the Civil Code regarding the supplementary liability of the subject of security obligations. According to this article, the constituent elements of an educational institution's liability for tort by a third party include: (1) A third party other than the educational institution commits a direct tort. This third party does not include persons with no capacity for civil conduct or persons with limited capacity for civil conduct who are studying or living in the educational institution, nor does it include teachers and staff of the educational institution. (2) The personal rights and interests of persons with no capacity for civil conduct or persons with limited capacity for civil conduct are harmed during their study or life in the educational institution, i.e., the damage must be personal injury suffered during study and life in the educational institution. (3) The educational institution fails to fulfill its management duties. This is mainly manifested in the inaction of the educational institution. (4) There is a causal relationship between the conduct of the school and other educational institutions and the consequences of the damage.

It should be noted that the so-called corresponding supplementary liability borne by the educational institution in this article means that the third party who committed the direct tort should bear the liability first, and if the third party cannot be found or the third party does not have sufficient ability to compensate, the educational institution should bear the supplementary liability in the second order. In addition, "corresponding" liability means that the proportion of supplementary liability borne by the educational institution should be determined according to the degree of its fault.

5. Article 1203 [Liability for Damage Caused by Product Defects] Where damage to others is caused by a defect in a product, the infringed party may claim compensation from the manufacturer of the product or from the seller of the product.

Where a product defect is caused by the manufacturer, the seller shall have the right to recover from the manufacturer after compensation. Where a product defect is caused by the fault of the seller, the manufacturer shall have the right to recover from the seller after compensation.

Practical Points:

Article 1203 provides for the allocation of liability for damage caused by product defects. According to this article, on the premise of satisfying the constituent elements of product liability, as long as the product is defective when it leaves the distribution chain, the seller shall bear full liability when the victim chooses to demand that the seller bear the liability; if the victim demands that the manufacturer bear the liability, the manufacturer shall also bear full liability.

The legal relationship of the right of recourse between the seller and the manufacturer includes the following two situations: (1) The seller seeks recourse from the manufacturer. The conditions that need to be met at this time are: First, the seller has already assumed liability for compensation to the infringed party; second, the cause of the product defect lies with the manufacturer, and not due to the seller's own fault. (2) The manufacturer seeks recourse from the seller. The conditions that need to be met at this time are: First, the manufacturer has already assumed liability for compensation to the infringed party; second, the product defect is caused by the fault of the seller. For the relationship of recourse between sellers, such as between wholesalers and retailers, the above rules shall also be followed, and the seller who claims the right of recourse shall bear the burden of proof.

6. Article 1204 [Manufacturer's and Seller's Right of Recourse Against a Third Party at Fault] Where a product defect is caused by the fault of a third party such as a carrier or warehouse keeper, resulting in damage to others, the manufacturer or seller of the product shall have the right to recover from the third party after compensation.

Practical Points:

Article 1204 provides for the right of recourse of manufacturers and sellers against third parties at fault. This article resolves the issue of internal liability between manufacturers, sellers, and third parties such as carriers and warehouse keepers, or in other words, the issue of manufacturers and sellers who bear product liability exercising the right of recourse against third parties. The above-mentioned right of recourse does not affect the liability of manufacturers and sellers to the infringed party.

For manufacturers and sellers to claim corresponding liability from a third party, the following conditions need to be met: (1) The manufacturer or seller has already assumed liability for compensation to the infringed party on the premise of satisfying the constituent elements of product liability. (2) The defect of the product is caused by the conduct of a third party such as a carrier or warehouse keeper. The conduct of the third party may be to cause a defect in a product that originally had no defect, or it may be to aggravate a defect that already existed. In other words, the conduct of the third party must have a causal relationship with the formation of a certain product defect. (3) The third party such as the carrier or warehouse keeper is at fault. The fault of the third party is usually negligence, but it does not exclude intentional forms. If the manufacturer or seller claiming the right of recourse cannot provide evidence to prove the existence of the third party's fault or cannot prove that the third party's fault caused the formation of a certain product defect, its right of recourse against the third party cannot be established.

7. Article 1215, Paragraph 2 [Recourse of the Compulsory Motor Vehicle Insurance Insurer in Cases of Tort Involving Theft, Robbery, or Snatching of a Motor Vehicle] Where the insurer pays in advance for rescue expenses within the limit of liability of the compulsory motor vehicle insurance, it shall have the right to recover from the person responsible for the traffic accident.

Practical Points:

Article 1215, Paragraph 2 provides for the recourse of the compulsory motor vehicle insurance insurer in cases of tort involving theft, robbery, or snatching of a motor vehicle. Generally speaking, after a road traffic accident occurs, the order of liability stipulated in Article 1213 of this Law shall be followed, and the insurer shall first bear the liability for compensation within the limit of the compulsory motor vehicle insurance, but in order to prevent and punish situations such as driving a stolen or robbed motor vehicle, the insurer of the compulsory motor vehicle insurance shall be granted the right of recourse against the tortfeasor after bearing the liability for compensation.

8. Article 1216 [Liability for Hit-and-Run] Where a motor vehicle driver flees after a traffic accident, and the motor vehicle is covered by compulsory insurance, the insurance company shall provide compensation within the limit of liability of the compulsory motor vehicle insurance; where the motor vehicle is unknown, the motor vehicle is not covered by compulsory insurance, or the rescue expenses exceed the limit of liability of the compulsory motor vehicle insurance, and it is necessary to pay for the rescue, funeral and other expenses for personal injury or death of the infringed party, the road traffic accident social assistance fund shall pay in advance. After the road traffic accident social assistance fund pays in advance, its management agency shall have the right to recover from the person responsible for the traffic accident.

Practical Points:

Article 1216 provides for liability for hit-and-run. This article divides the situation of vehicles fleeing after an accident into three types: (1) The motor vehicle driver flees after driving, and it is difficult to find out the specific motor vehicle involved in the accident. (2) The motor vehicle involved in the accident is not covered by compulsory motor vehicle insurance. (3) The rescue expenses exceed the limit of liability of the compulsory motor vehicle insurance. Article 53 of the original "Tort Liability Law" stipulated that the road traffic accident social assistance fund shall first pay in advance for the rescue, funeral and other expenses for personal injury or death of the infringed party in the first two situations, but did not stipulate how to deal with the situation where the compulsory insurance limit is exceeded. The "Civil Code" added this provision when it was revised, that is, when the compulsory motor vehicle insurance for the hit-and-run motor vehicle is not sufficient to pay for the rescue, funeral and other expenses for personal injury or death of the infringed party, the road traffic accident social assistance fund shall first pay in advance. It should be noted that after the road traffic accident social assistance fund pays in advance for rescue and funeral expenses, its management agency shall have the right to recover from the person responsible for the traffic accident.

If the owner, manager, or user of the motor vehicle can be identified, but the advance payment is made due to exceeding the liability limit of the compulsory traffic insurance, the rescue fund management institution may seek recovery in accordance with the provisions of the chapter on "Motor Vehicle Traffic Accident Liability" in the Tort Liability section regarding the responsible party. If the owner, manager, or user of the motor vehicle is identified, but the motor vehicle insurer has not insured compulsory traffic insurance, resulting in the advance payment of the road traffic accident social assistance fund, the management institution of the rescue fund may seek recovery from the owner, manager, or user of the motor vehicle, and may also seek recovery from the insurance obligor who has not fulfilled the statutory obligation to insure compulsory traffic insurance.

9. Article 1223 [Tort Liability for Defects in Medicines, Disinfection Products, Medical Devices, or Input of Substandard Blood] Due to defects in medicines, disinfection products, or medical devices, or damage to a patient caused by the input of substandard blood, the patient may request compensation from the marketing authorization holder, producer, or blood provider, or may request compensation from the medical institution. If the patient requests compensation from the medical institution, the medical institution shall have the right to seek recovery from the liable marketing authorization holder, producer, or blood provider after compensation.

Practical Points:

Article 1223 provides for tort liability for defects in medicines, disinfection products, medical devices, or input of substandard blood. Compared to Article 59 of the original "Tort Liability Law", this article adds "marketing authorization holder" as the subject of medical product liability. After assuming liability for compensation, the medical institution shall have the right to seek recovery from the liable marketing authorization holder, producer, or blood provider.

According to this article, the producer of medical products bears no-fault liability, and the subject claiming the right of recovery does not need to bear the burden of proof for the fault of the medical product producer. However, when the medical institution is the ultimate responsible party, the subject claiming the right of recovery needs to bear the burden of proof for the fact that the fault of the medical institution caused the product defect.

10. Article 1233 [Tort Liability for Environmental Pollution and Ecological Damage Due to the Fault of a Third Party] If environmental pollution or ecological damage is caused by the fault of a third party, the infringed party may request compensation from the tortfeasor or from the third party. After the tortfeasor has paid compensation, it shall have the right to seek recovery from the third party.

Practical Points:

Article 1233 provides for tort liability for environmental pollution and ecological damage due to the fault of a third party. The fault of a third party is a reason for the defendant to reduce or exempt liability in general tort liability, but based on the particularity of environmental torts, unless otherwise provided by other environmental resource specific laws, the fault of a third party cannot be used as a reason for the tortfeasor to reduce or exempt liability. Therefore, this article stipulates that the infringed party may request compensation from both the tortfeasor and the third party.

It should be noted that the scope of application of this article should be limited to situations where the damage to others caused by environmental pollution or ecological damage is due to the fault of a third party. That is, the third party stipulated in this article is not the controller and discharger of the pollution source, but the actor who implements destructive acts on the pollution source, thereby causing environmental pollution or ecological damage.

11. Article 1250 [Liability for Animal Injury Caused by the Fault of a Third Party] If an animal causes damage to another person due to the fault of a third party, the infringed party may request compensation from the animal breeder or manager, or may request compensation from the third party. After the animal breeder or manager has paid compensation, it shall have the right to seek recovery from the third party.

Practical Points:

Article 1250 provides for liability for animal injury under the fault of a third party. The third party stipulated in this article refers to other subjects other than the injured party and the animal's breeder or manager. Such as a third party teasing a pet dog causing it to injure someone, a third party releasing a Tibetan mastiff from an iron cage causing it to injure someone, etc.

According to this article, the injured party, as the right holder of compensation, can choose to request compensation from the third party or the animal's breeder or manager according to their own wishes. If the fault of the third party is the only cause of the damage, that is, the damage is purely caused by the third party, the third party shall, in principle, bear full responsibility. The animal's breeder or manager can fully recover from the third party after compensation. If the fault of the third party is only a partial cause of the damage, for the breeder or manager, when seeking recovery from the third party after assuming liability, they cannot seek recovery for the entire liability, and Article 1172 of the Civil Code should be applied, and each should bear the corresponding liability according to the size of the cause.

12. Article 1252 [Liability for Damage Caused by Collapse or Subsidence of Buildings, Structures, or Other Facilities] If a building, structure, or other facility collapses or subsides, causing damage to others, the construction unit and the construction unit shall bear joint and several liability, unless the construction unit and the construction unit can prove that there is no quality defect. After the construction unit and the construction unit have paid compensation, if there are other responsible persons, they shall have the right to seek recovery from other responsible persons.

If a building, structure, or other facility collapses or subsides due to the reasons of the owner, manager, user, or a third party, causing damage to others, the owner, manager, user, or third party shall bear tort liability.

Practical Points:

Article 1252 provides for liability for damage caused by the collapse or subsidence of buildings, structures, or other facilities. If a building, structure, or other facility collapses or subsides due to quality defects, causing damage to others, the primary responsible parties are the construction unit and the construction unit. The construction unit is the owner and developer of the construction project. The construction unit includes the contractor, subcontractor, transferor, and actual constructor of the construction project, but does not include individuals. The construction unit and the construction unit bear joint and several liability, and the injured party may request the construction unit to bear tort liability, or may request the construction unit to bear tort liability, or may request both to jointly bear liability. If the quality defect is caused by the fault and reasons of the construction unit and the construction unit themselves, the liability they bear is direct and final liability; if the quality defect is caused by the fault of other responsible persons, the construction unit and the construction unit bear the advance payment liability, and they have the right to seek recovery from other responsible persons after actual compensation.

In addition, the responsible parties for damage caused by the collapse or subsidence of buildings, structures, or other facilities not due to quality defects are mainly the owners, managers, and users of the buildings, structures, or other facilities, and also include third parties who are responsible for the collapse or subsidence other than these, such as decorators, etc.

The first paragraph of this article applies to the situation where the work collapses or subsides due to quality defects in the construction stage, and the second paragraph of this article applies to the situation where the work collapses or subsides due to management and maintenance defects after it is delivered for use.

13. Article 1253 [Liability for Damage Caused by Falling or Dropping of Buildings, Structures, or Other Facilities and Their Placed or Suspended Objects] If a building, structure, or other facility and its placed or suspended objects fall or drop, causing damage to others, the owner, manager, or user shall bear tort liability if they cannot prove that they are not at fault. After the owner, manager, or user has paid compensation, if there are other responsible persons, they shall have the right to seek recovery from other responsible persons.

Practical Points:

Article 1253 concerns the liability for damages caused by the detachment or falling of buildings, structures, or other facilities and their fixtures or suspended objects. The so-called 'other liable person' refers to a person who is liable for the occurrence of the damage other than the owner, manager, or user. In practice, some damages are related not only to the fault of the owner, manager, or user, but also to other people, such as a contractor hired to install anti-theft nets or air conditioners that are not firmly installed and fall to injure passers-by. In this case, after the owner, manager, or user compensates the victim, they have the statutory right of recourse and have the right to seek recovery from other people who are liable for the occurrence of the damage.

14. Article 1254 [Liability for Objects Thrown from or Falling from Heights]   It is forbidden to throw objects from buildings. If objects thrown from buildings or objects falling from buildings cause damage to others, the tortfeasor shall bear tort liability in accordance with the law; if it is difficult to determine the specific tortfeasor after investigation, the users of the building who may have caused the harm shall provide compensation, unless they can prove that they are not the tortfeasor. The users of the building who may have caused the harm shall have the right to seek recourse from the tortfeasor after compensation.

Building managers such as property service enterprises shall take necessary safety measures to prevent the occurrence of the circumstances stipulated in the preceding paragraph; if they fail to take necessary safety measures, they shall bear tort liability for failing to fulfill their safety guarantee obligations in accordance with the law.

In the event of the circumstances stipulated in the first paragraph of this article, public security organs and other authorities shall promptly investigate in accordance with the law to ascertain the person responsible.

Practical Points:

Article 1254 is about the provisions on the responsibility for throwing objects from heights and falling objects. Compared with the original Article 87 of the 'Tort Liability Law', there are many changes in this article: (1) The new provision 'It is forbidden to throw objects from buildings' clearly shows the law's prohibition of throwing objects from heights. (2) It clarifies that in the case where objects thrown from buildings or objects falling from buildings cause damage to others, the rule is that 'the tortfeasor shall bear tort liability in accordance with the law as a general rule, and the users of the building who may have caused the harm shall provide compensation as an exception', instead of the practice of the original Article 87 of the 'Tort Liability Law' that the users of the building who may have caused the harm shall provide compensation as a general rule. (3) The responsibilities of building managers such as property service enterprises are newly added, that is, 'Building managers such as property service enterprises shall take necessary safety measures to prevent the occurrence of the circumstances stipulated in the preceding paragraph; if they fail to take necessary safety measures, they shall bear tort liability for failing to fulfill their safety guarantee obligations in accordance with the law'. (4) The provisions on the responsibilities of relevant departments to find are newly added, that is, 'In the event of the circumstances stipulated in the first paragraph of this article, public security organs and other authorities shall promptly investigate in accordance with the law to ascertain the person responsible'.

From the perspective of dispersing risks in modern society, with the acceleration of urbanization in my country, there are more and more high-rise buildings, and cases of damage to others caused by objects thrown or falling from buildings occur from time to time, and sometimes even cause serious injury or death to others. To this end, the latter part of the first paragraph of this article stipulates that 'if it is difficult to determine the specific tortfeasor after investigation, the users of the building who may have caused the harm shall provide compensation, unless they can prove that they are not the tortfeasor'. The essence of this content is also presumption of fault, that is, the defendant must bear civil liability if he cannot prove that he is not at fault or that he is not the tortfeasor. The determination of the tortfeasor within the scope of the building's ownership unit of 'possible harm' can be combined with technological means and the rules of daily life experience, such as residents on the first floor obviously cannot be considered as possible harmers of throwing objects from heights.

In addition, property service enterprises can also play an important role in preventing and regulating the behavior of throwing objects from heights and falling objects. To this end, the second paragraph of this article clarifies the obligations and responsibilities of building managers such as property service enterprises. The premise for building managers such as property service enterprises to bear tort liability is that they have not taken necessary safety measures, that is, they have not fulfilled their corresponding safety guarantee obligations. In terms of the form of liability, there are two types: (1) As a direct tortfeasor, it bears the responsibility according to its share of fault, and the rules stipulated in Article 1253 of the Civil Code shall apply to the principle of attribution. (2) There is a direct tortfeasor who throws objects from heights or falls objects, and building managers such as property service enterprises also violate the corresponding safety guarantee obligations. At this time, the property service enterprise shall bear the corresponding supplementary responsibility, and after bearing the responsibility, it may seek recourse from the direct tortfeasor in accordance with Article 1198 of the Civil Code regarding the provisions on safety guarantee obligations. The direct tortfeasor here is the 'tortfeasor' stipulated in the first paragraph of this article.