PRC Tort Liability Law - 中华人民共和国侵权责任法
Released on December 28, 2009, and effective on July 1, 2010
The 11th Standing Committee of the National People's Congress passed the PRC Tort Liability Law (“Tort Law”) on December 26, 2009. Although tort liability is created under other PRC laws, the Tort Law is the first PRC law to set forth the rules for tort in one place. The Tort Law will become effective on July 1, 2010. A few highlights of the new law are as follows:
Liability & Remedies: The Tort Law follows the existing PRC law doctrines of fault, contributory negligence and no-fault liability, and the remedies are a) ceasing the tortious act, b) exclusion of hindrance, c) eliminating the danger, d) restoration of property, e) compensation for damages, f) giving a formal apology, and g) eliminating the adverse effects and repairing the damaged reputation. In certain instances, the injured party also may seek damages for emotional distress. No liability will be assumed if the damages are the result of force majeure unless otherwise provided by law.
Internet: An internet user or an internet provider is liable in tort if they infringe on the personal rights of another through the internet, and the injured has the right to notify the internet provider to have it delete, block or disconnect the infringing link. If the Internet service provider is notified of, or is aware of, the infringement and fails to take the necessary measures, the internet service provider will be jointly liable for the damage caused by the internet user.
Educational Institutions: If a minor suffers personal injury when learning or living in an educational institution, the educational institution shall be liable unless it can prove that it has satisfied its duty of education or management. The Tort Law also sets forth rules for injury to minors and for injury by third parties at educational institutions.
Product Liability: The Tort Law adds two new rules concerning product liability to the PRC Product Quality Law. One rule states that if defects are found to exist in a product after it has been put into circulation, the producer or the seller shall take remedial measures, such as issuing warnings or recalling the product in due course, and if the producer or the seller does not do so, then they shall be liable for any resulting damages. The second rule states that if products are produced and sold with known defects that cause death or serious injury, the injured party shall have the right to claim punitive damages.
Motor Vehicle Accident: For the motor vehicle at fault in an accident, the vehicle’s insurance company is liable up to policy limits, and any damage above the policy limits shall be borne by the user of the vehicle (which can be the owner, or in other instances, the person who rented or leased the vehicle).
Medical Liability: If a patient is injured during diagnosis or medical treatment and such injury is caused by the medical staff, the medical institution to which the staff person is employed shall be liable. Also, under certain emergency situations, a medical institution may treat a patient without getting prior approval from a patient’s relative. There are also three circumstances under which the medical institution bears no tort liability.
1. the patient or his close relative does not cooperate with the medical institution in the diagnosis and treatment in line with the procedures and standards for diagnosis and treatment;
2. the medical staff have fulfilled the duty of reasonable diagnosis and treatment in the case of an emergency such as rescue of a patient in critical condition; or
3. diagnosis and treatment of the patient is difficult due to the medical level at the time.
Environmental Contamination: The alleged polluter bears the burden of proof to show that there is no legal basis for bearing liability, that the polluter mitigated the contamination and that the alleged polluter’s acts did not cause the damage.
Extremely Dangerous Substances: If damage is caused by the loss or abandonment of an extremely dangerous substance, the owner of the substance shall be held liable. If the dangerous substance is under the control of another, the person who controls it shall bear the liability, but if the owner also bears some fault, the owner shall be jointly and severally liable with the person who controls the substance.
Objects Falling Out of a Building: If an object thrown or falling out of a building causes damage and the person(s) responsible cannot be easily determined, then the user(s) of the building that are likely to have caused the injury will be liable unless the user(s) can prove that they are not at fault.