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John | 23rd Aug 2010, 14:29 PM | 法律英語 | (560 Reads)

This post sets out some observations on the PRC Tort Liability Law in respect of five areas, namely right to privacy, joint and several liability in tort, Internet service providers’ liability, product liability, and environmental pollution.

The Tort Liability Law of China was promulgated on 26 December 2009 and took effect on 1 July 2010. 

Right to privacy

第二条 侵害民事权益,应当依照本法承担侵权责任。本法所称民事权益,包括生命权、健康权、姓名权、名誉权、荣誉权、肖像权、隐私权、婚姻自主权、监护权、所有权、用益物权、担保物权、著作权、专利权、商标专用权、发现权、股权、继承权等人身、财产权益。

Article 2 Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law.“Civil rights and interests” used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, right to discovery, equities, right of succession, and other personal and property rights and interests.

Observation: Under Article 2 of the Tort Liability Law, the right to privacy is, for the first time, recognized as a civil right and protected by Chinese law.

Joint and several liability in tort 

第八条 二人以上共同实施侵权行为,造成他人损害的,应当承担连带责任。

Article 8 Where two or more persons jointly commit a tort, causing harm to another person, they shall be liable jointly and severally.

Observation: Under Article 8, there is no requirement to establish joint intention or joint negligence.  For example, if a farmer provides eggs infested with salmonella to a supermarket operator and the latter does not perform due diligence before offering the eggs to his customers and the eggs cause damage to health as a result, both the farmer and the supermarket operator should be jointly and severally liable for the damage caused by the infested eggs.

Internet service providers’ liability 

第十一条 二人以上分别实施侵权行为造成同一损害,每个人的侵权行为都足以造成全部损害的,行为人承担连带责任。

Article 11 Where two or more persons commit torts respectively, causing the same harm, and each tort is sufficient to cause the entire harm, the tortfeasors shall be liable jointly and severally.

Observation: If two tortfeasors’s separate act cause the same damage, both tortfeasors will be jointly and severally liable.  For example, if a person is hit by a taxi and then negligently injected with lethal medicine by a medical officer and either the car accident or the medicine alone is sufficient to cause the person’s death, both the driver and the medical officer will be jointly and severally liable – even though their acts are separate.

第三十六条 网络用户、网络服务提供者利用网络侵害他人民事权益的,应当承担侵权责任。  

网络用户利用网络服务实施侵权行为的,被侵权人有权通知网络服务提供者采取删除、屏蔽、断开链接等必要措施。网络服务提供者接到通知后未及时采取必要措施的,对损害的扩大部分与该网络用户承担连带责任。

网络服务提供者知道网络用户利用其网络服务侵害他人民事权益,未采取必要措施的,与该网络用户承担连带责任。

Article 36 A network user or network service provider who infringes upon the civil right or interest of another person through network shall assume the tort liability.

Where a network user commits a tort through the network services, the victim of the tort shall be entitled to notify the network service provider to take such necessary measures as deletion, block or disconnection. If, after being notified, the network service provider fails to take necessary measures in a timely manner, it shall be jointly and severally liable for any additional harm with the network user.

Where a network service provider knows that a network user is infringing upon a civil right or interest of another person through its network services, and fails to take necessary measures, it shall be jointly and severally liable for any additional harm with the network user.

Observation: Under this Article, if a network user commits a tort using internet services, the victim is entitled to request the network service provider to take the necessary action to protect his rights, e.g. deleting a post or blocking a link.  However, it is unclear whether such a request should only be made after a final judgment is made by the PRC court.  Absent such judgment, the network service provider can fall into a difficult position.  Should he take the actions requested by the alleged victim to avoid potential liability?  Would he infringe on the user’s right by taking such actions?

Product Liability 

第四十六条 产品投入流通后发现存在缺陷的,生产者、销售者应当及时采取警示、召回等补救措施。未及时采取补救措施或者补救措施不力造成损害的,应当承担侵权责任。

Article 46 Where any defect of a product is found after the product is put into circulation, the manufacturer or seller shall take such remedial measures as warning and recall in a timely manner. The manufacturer or seller who fails to take remedial measures in a timely manner or take sufficient and effective measures and has caused any harm shall assume the tort liability.

Observation:  This means that manufacturers and sellers should keep themselves updated on the safety of products that they have launched onto the market. 

第四十七条 明知产品存在缺陷仍然生产、销售,造成他人死亡或者健康严重损害的,被侵权人有权请求相应的惩罚性赔偿。

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.

Observation: This penalty is in addition to damages which may be awarded under the Product Quality Law of the People’s Republic of China(中華人民共和國產品質量法).

Environmental pollution 

第六十五条 因污染环境造成损害的,污染者应当承担侵权责任。

Article 65 Where any harm is caused by environmental pollution, the polluter shall assume the tort liability.

Observation: Under this Article, a polluter would be strictly liable for damage caused by its environmental pollution and proof of its violation of any environmental protection law is not required. 

第六十八条 因第三人的过错污染环境造成损害的,被侵权人可以向污染者请求赔偿,也可以向第三人请求赔偿。污染者赔偿后,有权向第三人追偿。

Article 68 Where any harm is caused by environmental pollution for the fault of a third party, the victim may require a compensation from either the polluter or the third party. After making compensation, the polluter shall be entitled to be reimbursed by the third party.

Observation: This Article requires companies which are potentially environment-contaminating to exercise more caution, particularly when their plants are vulnerable to third parties’ influence.

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