On The Supplementary Liability In Torts Law Of China

Supplementary tort liability is a form established to share liability. It can be found inboth “Interpretation of the Supreme People’s Court of Some Issues concerning the Applicationof Law for the Trial of Cases on Compensation for Personal Injury” enacted in2003, and“Tort Liability Law of the People’s Republic of China”enacted in2009. Supplementary tortliability is a compensation obligation shared by different obligors for one obligee due todifferent reasons. The obligor caused the direct damage will be the first one to assume theliability. However, if he or she is unaccounted for or can’t pay all, supplementary liability willbe shared by the rest obligors. Due to the absence of supplementary liability in other countriesand its short history in China, there are a lot worth studying on. Therefore, this thesis startswith the origin of the supplementary liability, introduces its concept, nature, constitutionalelements and applicable rules, and explores concerned questions in litigation andenforcement.There are four parts in the main body excluding introduction and conclusion:The first part mainly discusses the origin of supplementary tort liability system in China.In personal injury cases caused by combined direct tort behaviors, supplementary liabilitysystem is a good solution to the problem of sharing liabilities. It is necessary to establishsupplementary liability system due to the dilemma other countries fell in while solving theseproblems. The establishment of supplementary liability system improves the way to shareliabilities when a number of torts, avoids the dilemma when joint liability and several liability,and ensure the harmony and stable development of society.The second part focuses on the clarification of concept of supplementary liability. Theaccurate and clear definition of “supplementary” is the premise of the identificationsupplementary liability, mainly including procedural supplementary and substantivesupplementary. As for its nature, scholars hold different views. Through the introduction ofthe contradictory pair “risk liability” and “ultimate responsibility”, this thesis gives a detailedanalysis and clarifies its belonging to “risk liability”.The third part emphasizes the application of supplementary liability, which includes theapplicable scope of supplementary liability, its constitutional elements and whether owning the right of recourse. Based on the analysis of obligation type, this thesis makes clear whatkind of cases supplementary liability should be applied to. Through the application of themodel of law and economics, this paper illustrates supplementary liability of obligors’corresponding to “their own mistakes”. Through the detailed analysis of constitutionalelements, plus non-negligible exemptions, this paper forms a complete system ofsupplementary liability imputation. Though scholars hold different view towards whetherpeople have the right to recover, this paper insists on the full enjoyment of the right torecover.This fourth part mainly discusses the litigation and enforcement of supplementaryliability cases. The litigation of supplementary liability cases belong to necessary jointcommon action. The requests from victims can be achieved in different ways. Executionguarantees the safeguard of the interest of victims. It is necessary to follow the correspondingprinciples to ensure the rights of obligors.