Abstract
Much ink has already been spilled on the Chinese tort law system, focusing in particular on its development, formulation, and transplants from other legal systems (particularly from German and French civil law). Very few, however, addressed the relation between the statutory reform and Chinese unofficial law. Resting upon the assumption that law is institutional and cannot be alienated from its cultural contexts, this chapter aims to describe the multi-layered framework of the Chinese tort law system in light of Bussani’s legal stratification doctrine.
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Notes
- 1.
Legal positivism-oriented scholars often refer to the Law on Legislations (2015) to argue that the Supreme People’s Court does not have the legal interpretation power. Article 45 of the Law on Legislations reserves the interpretation power for the Standing Committee of People’s Congress (SCPC). In reality, SCPC rarely issues interpretations on law, nor does it invalidate the code-like interpretations issued by the Supreme People’s Court.
- 2.
See Article 2 and Article 3 of Supreme People’s Court’s Interpretations on Certain Issues Concerning the application of law in trying cases for personal injury (2003).
- 3.
Articles 8 to 12 of TLL deal with causations in multiple tortfeasors involved torts. Article 8 lays down the general principle, and stipulates a joint and several liability for jointly committed tortious acts; Article 9 requires a person that abets or assists tortfeasor to bear joint and several liability with the latter; while Articles 10 to 12 address the multiple tortfeasors’ liability based on the nature of the tortious act and whether the seriousness of each tortfeasor could be determined.
- 4.
The Restatement (Second) of Torts, § 402A (1965). Section 402 A(1) provides: “One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property”.
- 5.
There have been efforts to define ‘consumer’ in the EU context. See Maria Bucura v. SC Bancpost SA, Case C-348/14 of the European Court of Justice, 9 July 2015. The Court opines that an average consumer is a person who is reasonably well informed and reasonably observant and circumspect. See also, on the same lines, Ruxandra Paula Andriciuc and Others v. Banca Românească SA, Case C-186/16 from the European Court of Justice, 20 September 2017, paragraph 47.
- 6.
See United States v. Carroll Towing, Co., 159 F.2d 169 (1947).
- 7.
See BMW of North America Inc v Gore 517 S. 559, 116 S.Ct. (1996); Liebeck v. McDonalds Restaurants, P.T.S. Inc. No.CV 93 02419, 1995WL360309 (1994).
- 8.
See Pacific Mutual Life Insurance Co. v. Haslip et al. 499 U.S.1 (1991); Exxon Shipping Co., et al., Petitioners v. Grant Baker, et al. 554 U.S. 471 (2008). These decisions require that trial courts properly instruct juries and that juries’ determinations of punitive damage awards are reviewed by trial and appellate courts, so as to ensure that determinations are reasonable and not in contrast with the due process clause of the U.S. Constitution.
- 9.
Personal injury exists in many chapters of the TLL (e.g. in Chapter 7—Liability for medical damage; Chapter 10—Liability for damaged caused by domestic animals). Search in China Judgement Online (a database on the case-law of the Supreme People’s Court) of the expression ‘personal injury’ from 2002 to 2018 yields 1,326,112 judicial decisions concerning personal injury. See China Judgment Online (www.wenshu.court.gov.cn).
- 10.
Despite that lower courts may use the Supreme People’s Court’s formal reply as the basis for their legal decisions, they could not make reference to the reply as an official legal source.
- 11.
The origins of the debate should be traced back to a death compensation case of 2005: He Yuan, a 14 years old girl, and two friends of her were killed in a traffic accident in Chongqing. After the local court was involved in the negotiation, He Yuan’s parents received only 90,000 RMB for compensation because her Hukou was rural, while the parents of He Yuan’s friends were compensated each over 200,000 RMB. This outcome provoked huge criticism from both scholars and public media upon the Supreme People’s Court’s Interpretations. See Beijing Daily (www.bjreview.cn/Cn/06-CN/06-19/zm-1.htm).
- 12.
See No. 1 Civil Tribunal of the Supreme People's Court’s Reply on How to Calculate the Compensations for Rural Residents Whose Habitual Residences Are in an Urban Area and Who Are Injured or Die from Traffic Accidents. Also see Luo Jinhui et al., v. Yunnan Zhaotong Passenger Transportation Co. Ltd. (2005), Yunnan Higher Court; Ji Yizhen et al. v. PICC Haian Co. Ltd. (traffic accidents caused personal injury), Nantong City Intermediate Court (2006); Mr Lai v. Mr Liu and China Life Insurance Beijing Co. Ltd., Motor Vehicle Accident, Appeal Case number 7262, No. 1 Intermediate Court of Beijing (2015). These cases are examples of the use of Hukou and habitual residence criterion in deciding damage awards.
- 13.
See Article 5, Article 10 and Article 14 of People’s Mediation Law (2010). The law requires a people’s mediator having certain level of legal knowledge. Moreover, the People’s Mediation Committee shall be under the instruction of local justice department. It also receives professional instructions from the local People’s Court.
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Wang, W. (2020). Tort Law in China. In: Fiorentini, F., Infantino, M. (eds) Mentoring Comparative Lawyers: Methods, Times, and Places . Ius Gentium: Comparative Perspectives on Law and Justice, vol 77. Springer, Cham. https://doi.org/10.1007/978-3-030-34754-3_5
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