A Study On The Issues Of Damage Inflicted To Another By Thrower

Regime for compensation referred to damage inflicted to another by thrower has been existed since the ancient times. With the rapid development of market economy of our country, real estate develops quickly. High buildings and large mansions can be seen everywhere in the city, seven or eight floors, even dozens of floors which are next to public passages or roads. In recent years, accidents happened frequently because of damage inflicted to another by thrower. Now under the situation that clear regulation for damage inflicted to another by thrower isn't be fixed in our country, and compared with foreign relatively mature and affluent legislation, all kinds of arguments about damage inflicted to another by thrower compensatory laws and legal evidence exist in the theoretical circles of our country. The theoretical discussion is indigent, which influences the unity and authority of judicial practice. With the fast step for adopting the civil code of China, complete and systemic study on the problems of damage inflicted to another by thrower liability for damage, which has practical significant for the establishment of the system in civil code.The article is divided into introduction, text and epilogue.The introduction lists the court verdict of ashtray case in Chongqing. Superficially the problems of the case are simple: how to deal with damages when citizen's right of health is endangered. The verdict of the case maintains the benefit of the weak in the mind of judge. But the verdict of the case brought out discussion on tortious liability of thrower in the society and law circle so as to lead out the theme of the discussion of the article.The text adopts historical analysis legal science method and comparative jurisprudence, from the angle of analysis by application of Infringement Law's related laws, studies the responsibility on damage inflicted to another by thrower. The discussion begins from the following four aspects mainly:The connotation of responsibility of damage inflicted to another by thrower is discussed in the first chapter. Define the connotation of responsibility of damage inflicted to another by thrower by ashtray case of Chongqing. But because of being uncertain of tortfeasor for thrower, the feature of the behavior decides that it's hard to make sure the tortfeasor, subjective negligent tort of infringer and diversity of things causing damage. The reason for bringing about serious controversy of the verdict is: firstly, the verdict lacks foundation of law now in force, which doesn't accord with general constitutive requirements for undertaking the tortious liability; secondly, doctrine of presumption is applicable during the decision of court. According to the logic of the verdict, the idea that presumption of fault and the implementing of behavior should be implemented for subjective faults is ill-considered. In fact presumption of fault is still applicable for liability for fault; what's more, presumption of fault must combines with other elements in a legal responsibility to decide whether to undertake the responsibility. A basic premise for presumption of fault is that the person who is liable for damages, the subject responsibility should be infringer, and on the point presumption shouldn't be done. Therefore doctrine of presumption is used as the evidence in support of the theory of the case is not appropriate.Responsibility comparative analysis of damage inflicted to another by thrower is discussed in the second chapter. By listing the legal rules on liability for damage of damage inflicted to another by thrower in part continental law countries and system of Britain countries, the article compares the Legal evidence of liability for damage on damage inflicted to another by thrower in civil law of our country. Analyzing relative legislation draft of our country on regulations of laws applicable to liability for damage inflicted to another by thrower, the article come to the conclusion that the basic aim of tort law is to reasonably shift all kinds of damage happen in the society. To let any person of victims or persons who aren't the perpetrators and other associated persons undertake the responsibility alone is unfair, and the key for application of law of responsibility of the damage inflicted to another by thrower that infringer doesn't understand is to find the balance point of benefits between victims and the persons who aren't perpetrators.Current legislation and feasibility analysis of the appliance of theory is discussed in the third chapter. By analyzing the responsibility of damage inflicted to another by thrower, the article analyzes and compares several main theories, building thrower responsibility, equitable liability, common risk behavior and public safety theory. Problems about the application of law of responsibility on thrower that infringers don't understand are shown as the following three aspects: first, it's against the unfairness of law if let victims undertake the loss by themselves; it's also not fair in law if let the persons who aren't real infringers, that is, the possible relative persons; second, from what angle or theoretical foundation do the victims of thrower ask relative persons, the possible infringers to undertake damage? Third, how do infringers and victims divide on determination of legal responsibility and how to undertake the responsibility? Therefore we come to the conclusion that on the aspect of determination of legal responsibility for thrower infringement, according to the principle of justice, we should establish compensation system for relative owners or household in a reasonable scope.Relief for damage inflicted to another by thrower is discussed in the fourth chapter. The part is the important chapter of the article, and the goal of the part is to find a reasonable way of resolving the problems of responsibility's undertaking for damage inflicted to another by thrower by analyzing social security relief, insurance relief, property compensation fund, legal redressing and the compensation for relative owners. In developed countries, infringement and indemnity liability isn't the main capital source for compensating damage to person. In Taiwan, with the development of social economy, unimpeachable compensation system is established and social safety control is perfect to form three-phase compensation or compensation system. To realize social security relief, insurance relief and property compensation fund at the present stage in our country is difficult. Therefore to adopt compensation for relative owners or households, combining cases of thrower damages of uncertain infringer is relatively reasonable and acceptant for both parties and can also get good social effect and legal effect.The epilogue points out the goal of the article--for the problems of society, the law isn't the only way among so many problem solving approaches. While perfect structure of the law, strengthen civil moral level is necessary so as to build a harmonious society together.