Analysis on the Tort Liability for the Damages Caused by Articles Thrown from Building Without Confirmable Thrower
|School||East China University of Political Science|
|Course||Civil and Commercial Law|
|Keywords||damages caused by articles thrown from the building without confirmable thrower damages caused by buildings building distinction ownership|
Modern urbanization brought us high-rise buildings and a brand-new form of ownership, building distinction ownership, as well as“throwing from high-rise building”, a very intractable real-life problem. The falling article may easily cause terrible personal injury or property damages, on account of the high-rise building where the accident happens. Still because of the high-rise building with quite high density of occupation, there are great difficulties when looking for the thrower or the source of the falling article. The direct consequence is winning the lawsuit and recovering the damages is practically next to impossible for the victim as a result of failing to cover the basic burden of proof. Thereupon some victims choose to bring all the owners of the whole building before the court and ask them to share the compensation liability.Before the Tortious Liability Law of PRC came into force, there’s no current law for the court to apply during the trial of lawsuits, which arises different decisions and their grounds, among which the decision of the“ashtray case”in Chongqing became the most famous one. In that case, all the owners of the building with suspicion of action were adjudged to share the compensation liability by reason of the principle of presumption of fault. Controversies were initiated among the juristic scholars upon this judgment. While another round of controversies are brought up by the issuance of the Tortious Liability Law, in which we discover that Article 87 is basically an affirmation of the judgment of the“ashtray case”.The thesis firstly analyzed the legislative evolvement of Article 87 of the Tortious Liability Law and the article itself, and with comparative legal analyzing method, did the classified research on analogous legislations and judicial precedents of continental legal system and Anglo-American legal system. Then the thesis listed, analyzed and judged the main arguments of both sides in the controversy upon this article. Afterwards, the author did analysis and research on the characteristics and nature of the tort liability itself, which is the tort liability for the damages caused by articles thrown from a building without confirmable thrower. On the ground of that came the opinions of the author, which is: first of all, the liability for damages caused by articles thrown from a building without confirmable thrower needs not to be listed as an independent form of tort liability and is totally able to apply by analogy the rule of tort liability for the damages caused by buildings; secondly, during the application by analogy, it is necessary that we take the“building distinction ownership”into our account, considering this type of ownership is not a type of simple joint ownership which may treat the owners as an integral whole to jointly assume the liability for damages or compensation. The Trinitarian theory of the conception of“building distinction ownership”directly leads to the conclusion that the liability assumed by the single holder of the building distinction ownership, or the single holder of the building distinction ownership, or the single owner, to the harm to the third party caused by articles thrown or falling from a building without confirmable source should be considered in three different cases: the single user of the building assumes the tort liability for the damages caused by the articles thrown or falling from his exclusively possessed part of the building and under the possession of user, assumes the joint tort liability with other users or owners of the building of the harm to the third party caused by the articles dropping or falling from jointly used part of the building, and assumes no tort liability for the damages caused by the articles thrown or falling from other users’or owners’exclusively possessed part of the building. Lastly, the author conceived some ways to share this kind of damage, including the tort liability of the property management enterprise and the application of insurance and relief fund.The proverb goes that the unfortunate accidents can only be allowed to fall on the struck one. With regard to this type of tort lawsuit, the victim who fails to complete his burden of proof has no choice but to take the corresponding adverse consequences. This is what we call the legal logic of the tort liability law. On the other hand, tort law is not the only resort to transfer and disperse loss long ago. Compensation for this loss should be handled by social welfare system increasingly sophisticated, without prejudice to the integral logical system of law.