Study on the Tobacco Litigation
|School||Huazhong University of Science and Technology|
|Keywords||Smoking Passive smoking Tobacco litigation Tort liability Legislation advice|
Since China joined the Framework Convention on Tobacco Control, how to perform convention and keep public away from tobacco turns into a hot topic in China. Among many tobacco control measures, the tobacco litigation based on health rights became the first choice when the smokers and passive smokers were damaged. This paper introduces the harmfulness of tobacco and its produce and the produce standards of China tobacco produce, defines the connotation and classification of China tobacco litigation, analyses the legal support status of tobacco litigation, litigation status and the likeliness of the occurrence of massive litigation. Through legal characteristics analysis to different kind of litigations, this article finally proposes advice to China tobacco control legislation. Civil litigation part of this paper analyses the determination of action actors, cause of action, the content of legal relations, burden of proof, liability assumption and situations and reasons for exemption of the liability. Besides this, it analyses the tobacco litigation happened in China and illustrates the development of tobacco litigation in U.S. Administrative litigation part of this paper briefly introduce the concept and legal characteristics of administrative litigation.This paper uses the comparative study method to propose the development direction of China tobacco litigation via the analysis of China tobacco litigation and American litigation. Firstly, through theory study, it determines the law application in tobacco litigation whose purpose is to safeguard the civilian health rights in current legal situation. Secondly, as to legislation, this paper suggests that formulating relevant laws to ban smoking in working place and public place as soon as possible and proposes that set down related actors’rights and obligations and the distribution of burden of proof in tobacco litigation in relevant laws. Finally, the article advises to reform the types of China administrative litigation and points out that it is necessary to establish a type of administrative litigation in which abstract administrative action jeopardizing special public interests can be sued.