Richmond Journal of Global Law & Business Volume 10 | Issue 4 Article 2 2011 Tort Liabilities and Torts Law: The ewN Frontier of Chinese Legal Horizon Mo Zhang Temple University Beasley School of Law Follow this and additional works at: http://scholarship.richmond.edu/global Part of the Comparative and Foreign Law Commons, and the Torts Commons Recommended Citation Mo Zhang, Tort Liabilities and Torts Law: The New Frontier of Chinese Legal Horizon, 10 Rich. J. Global L. & Bus. 415 (2011). Available at: http://scholarship.richmond.edu/global/vol10/iss4/2 This Article is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusion in Richmond Journal of Global Law & Business by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. TORT LIABILITIES AND TORTS LAW: THE NEW FRONTIER OF CHINESE LEGAL HORIZON Mo Zhang1 ABSTRACT China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effec- tive as of July 1, 2010, forms a comprehensive framework that regu- lates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law. The Torts Law premises torts on the fault liability with a few exceptions where the non-fault liability is imposed. Structurally, the Torts Law is distinctive in that it stresses principles and rules of gen- eral application, and in the meantime prescribes peculiar tortfeasors and special torts that need to be dealt with differently. In substance, the Torts Law is ambitious because it intends to embrace not only traditional torts but also the newly developed area of torts. In many aspects, the Torts Law is also keen to maintain the Chinese characteristics. Still, there is a substantial gap between the law on the paper and the law in action. Many ambiguities exist, which require both leg- islative and judicial interpretations. In addition, many unsolved issues may become obstacles to the application of Torts Law. More signifi- cantly, Torts Law enforcement remains a major challenge to the Chi- nese legal system in general and to the Chinese judiciary in particular. 1 Associate Professor of Law, Temple University Beasley School of Law 415 416 RICHMOND JOURNAL OF GLOBAL LAW & BUSINESS [Vol. 10:4 TABLE OF CONTENTS I. INTRODUCTION .......................................... 417 II. CONCEPT OF TORTS AND ROLES OF THE TORTS LAW: UN- DERSTANDING OF TORTS IN CHINA ........................ 423 A. Torts in Chinese Conception ......................... 423 B. Functions of the Torts Law .......................... 427 C. Coverage of the Torts Law........................... 429 III. LIABILITY IMPUTATION PRINCIPLES: THE FOUNDATION OF CHINESE TORTS SYSTEM ................................. 431 A. General Principle of Fault ........................... 433 B. Presumption of Fault................................ 437 C. Liability without Fault .............................. 439 D. Fairness Principle ................................... 441 IV. MULTIPLE DEFENDANTS AND PECULIAR TORTFEASORS: A CHINESE CLASSIFICATION ................................ 444 A. Joint Torts .......................................... 445 B. Joint Tort Liability ................................. 449 C. Peculiar Tortfeasors ................................. 451 1. Special Relationship Tortfeasor .................. 451 2. Limited Capacity Tortfeasor ..................... 454 3. Internet Related Tortfeasor ..................... 456 V. DEFENSES TO TORT LIABILITIES: ON-GOING DEBATES ..... 458 A. Concurrent Fault of Plaintiff – Fault offset Rule ..... 459 B. Intentional Conduct of Plaintiff – Liability Exemption Rule ................................................ 460 C. Third Party Conduct – Non Joint Tortfeasor Rule . 461 D. Force Majeure and Self-Defense – Statutory Excuses . 463 E. Necessity – Rule of Emergency....................... 465 VI. MECHANISM OF REMEDIES AND DETERMINATION OF DAM- AGES: UNFINISHED BUSINESS ............................ 466 A. Liability Forms and Remedies ....................... 467 B. Damages and Rules of Compensation ................ 470 1. Personal Damages .............................. 471 2. Property Damages .............................. 474 3. Mental Damages ................................ 476 VII. SPECIAL TORT AND LIABILITIES: PARTICULAR TARGETS OF THE TORTS LAW ......................................... 478 A. Product Liability .................................... 480 1. Non-Fault Liability.............................. 481 2. Extended Liability .............................. 482 3. Punitive Damages ............................... 483 4. Mandatory Warning and Recall System ......... 484 5. Preventive measures ............................ 485 B. Liability for Environmental Pollution ............... 486 1. Liability Without Fault.......................... 486 2011] TORT LIABILITIES AND TORTS LAW 417 2. Reversed Burden of Proof ....................... 487 3. Pollution Share Rule ............................ 488 4. Third Party’s Action ............................. 489 C. Liability for Medical Damages ...................... 489 1. Medical Liability Categorization ................. 491 2. Multiple Liability Basis ......................... 492 3. Special Grounds for Liability Exemption ........ 493 4. Legal Restraint on Patients ..................... 493 VIII. CONCLUSION ............................................ 494 I. INTRODUCTION As part of its effort to adopt a comprehensive civil law (a gen- eral civil code), China enacted the Tort Liability Law – the first single piece of law on torts (the Torts Law) since 1949.2 After more than 7 years of drafting, since 2002,3 the Standing Committee of the National People’s Congress (NPC) promulgated the Torts Law on December 26, 2009, effective July 1, 2010.4 Despite lingering questions about whether the Standing Committee of the NPC may legitimately pass 2 At the very beginning of the economic reform in 1978, China had an ambitious plan to adopt a comprehensive civil code to replace the General Principles of Civil Law promulgated in 1986. But they never reached a consent among scholars and legislators on the substance of the civil code, and there were many issues that invited constant debates. In 1999, the Contract Law, which was supposed to be one chapter of the civil code, was adopted. In 2002, the first draft of the civil code was submitted to the Standing Committee of the NPC for review. Partly because of the wide disagreement over many provisions of the proposed civil code, the effort to adopt a comprehensive code at that time was abandoned. Instead, the attention was paid to the passage of separate law based on the each chapter of the proposed civil code. As a result, following the Contract Law, the Property Law was enacted in 2007. The adoption of the Tort Liability Law further exemplifies the legislative intention in this regard. 3 The effort to draft the Torts Law was initiated in 2002. Although at that time, the torts law was considered as a chapter of the proposed civil code, the draft torts chapter laid the structural basis for the later drafting of the Tort Liability Law. 4 Tort Liability Law of the People’s Republic of China (promulgated by the Stand- ing Comm., Nat’l People’s Cong., Dec. 26, 2009, effective July 1, 2010), available at http://www.gov.cn/flfg/2009-12/26/content_1497345.htm [hereinafter Tort Liability Law]. A full text of the Torts Law in English translation is available at http:// www.cnnlaw.com/show.asp?id=663. 418 RICHMOND JOURNAL OF GLOBAL LAW & BUSINESS [Vol. 10:4 Torts Law,5 Torts Law adoption is acclaimed in China as a significant modern legislative achievement in civil rights protection.6 China is known as a country where the clan and rites based Confucian orthodox dominated its legal system for thousands of years.7 But civil law tradition has strongly influenced China’s recent legal history.8 In the law regulating civil affairs, for example, the civil law concept of obligatio (obligations in English) has been deeply em- bodied in the basic structure of the law.9 Under the Roman law, the obligatio represented an obligatory relationship that is legally bind- ing,10 and was divided into ex contractu (contract) and ex delicto (de- lict).11 It also covered quasi contract and quasi delict.12 China does not use the term “quasi contract” or “quasi delict.” Instead, obligatio in China is comprehended to include contract, torts, 5 See XIANFA at art. 58 (1982). The passage of the law took an unusual step: in- stead of being adopted by the NPC full session, the Torts Liability Law took a short cut and was passed by the Standing Committee of the NPC – the permanent body of the NPC. Under Article 58 of the 1982 Chinese Constitution (as amended 2004), the National People’s Congress and its Standing Committee exercise the legislative power of the State. available at http://www.lawinfochina.com/law/ display.asp?id=3437. Pursuant to Article 62 of the Constitution and Article 7 of the Legislation Law of China, however, the legislative power of the Standing Com- mittee is limited to the law other than the basic law of the nation (e.g. according to Article 7 of the Legislation Law, the NPC enacts and amends basic laws governing criminal offenses, civil