The Profession Liability To The Third Party

The construction of the system of the professional liability to third party is of very importance in China. It is the reflection of pursuing material justice and can do good to the development of the special profession calling. In the process of constructing this system, it is necessary to balance conflict interests according to some standard of value and make our choice.The professional liability to third party is a controversial issue and there are lots of theories explaining it, such as contract liability, tort liability, product liability, profession liability and so on. However, from the framework of our existing civil law and the angle of protecting the interests of third party, the theory of tort liability is more powerful to explain the character of the professional liability to third party than others.In common law system, duty of care and pure economic loss are the main theoretical bases of the professional liability to third party. While in China, the existing tort theory is not the obstacle of explaining the professional liability to third party. The special knowledge or skill held by expert and the standard professional ethics would form public trust before the third party, and this kind of trust require the experts to assume relevant social responsibility. This responsibility is just right the theoretical basis of professional liability to third party.There are four elements deciding the professional liability to third party. Firstly, the expert implements the act which brings damage to third party. Secondly, there exists damage. The main form of the damage is pure economic loss. In this element, the direct property damage should be fully compensated, while for the indirect property damage, pure economic loss and psychiatric injury, the principle of reasonable compensation should be adopted. Thirdly, there exists effective causation. For the factual causation, the theory of necessary condition should be adopted. While for the legal causation, the theory of relevant causation is proper. Lastly, there exists intent or negligence in the expert. For intent, the theory of subjective standard should be adopted. For negligence, the standard of reasonable duty of care is appropriate. The burden of proof should be distributed fairly and reasonably between the plaintiff and the defendant.In order to avoid imposing too heavy responsibility on the expert, it is necessary to limit the professional liability in legislation by defining the scope of third party and the scope of compensation, etc. When the expert is sued for negligence, the defences include no negligence in the expert, no effective causation, existence of an exceptional and unexpected natural event, contributory negligence and existence of disclaimer, etc.