Study On The Subject Of Responsibility For Damage Caused By Domestic Animals

In response to the damage caused by domestic animal,the regulation of China's laws is mainly reflected in Article 127 of the General Principles of the Civil Law of the People's Republic of China(hereinafter referred to as the "General Principles of Civil Law")and the relevant provisions of Chapter 10 of Tort Law of the People's Republic of China(hereinafter referred to as the Tort Liability Law).The subject of responsibility for damage caused by domestic animals is “the keeper or manager.” But this concept is not completely clear.And the ambiguity leads to the lack of a unified judgment standard when judicial practice faces the judgment of the subject of animal tort liability,which leads to different referee results,affecting the authority of the law.Therefore,this article is mainly divided into three parts,which clarifies the meaning and identification rules of such tort liability subjects,and then discusses the responsibility forms assumed by the responsible subjects and draw conclusions.Part I: the subject of responsibility for raising animals has different regulations of each country,obviously reflecting the differences in legal terms.France adopts “the owner and the user”.In Japan and Taiwan it is called “possessors”.In The German civil law,it is called “the holder and the management”.The term adopted by China is innovative and it is “the breeder and the manager”.This part mainly analyzes the arguments of the subject of animal damage responsibility based on the comparative law and the legal provisions,theoretical disputes and practical viewpoints in China,including the standards of property rights relations,actual management controlstandards,and the coexistence standards of property rights and management control.The standard of property rights emphasize the responsible party of animal infringement should be the owner of the animal.With the constant exploration and development of theory and practice,the standard of property rightsdo not meet the needs of society and the standard of actual management control of animals is gradually emphasized,which leads to the management control as a core standard.In China,the theory generally states that “The keeper” is the owner of the animal,and“the manager” is the person who actually controls and manages the animal outside of the owner,which means this interpretation includes the standards of actual management control and property rights relationship.Part II: This part contains the contents of the second chapter and the third chapter of this article.It is the core part of this paper.It is a detailed exposition of the concept and standard of responsibility for the damage of animal in China.According to the concept used by the Legislative Affairs Commission of the Standing Committee of the National People's Congress on March 15,2018,the "People's Republic of China Civil Code Torture Responsibility(Draft)"(draft for comment),its basic intention is to continue to maintain the general concept of the subject of animal infringement which is “the keeper or manager”.It can be seen that the disputes of concept do not have much practical meaning for solving practical problems.Ultimately,it is more important to clarify the meaning of the concept and determine the subject of animal tort liability in the specific case.Although China's legal and judicial interpretations do not clearly define the specific connotations of keepers and administrators,Germany has obtained the concept of “Holder” and the standard of recognition through interpretation and construction.Therefore,China can also construct the concept and standard of recognition which compliance with laws and practices through interpretation.Drawing on the analysis and construction of the concept of the responsible keeper and manager of the responsible subject in China,the Chinese keeper refers to the person who owns the animal.The manager is Refers to the actual management and control of animals other than the owner.Therefore,the animal keeper is identified by the property rights relationship,while the animalmanager is identified by the actual management and control standard.The criteria of identify the keeper.I believe we can combine the status of China and the criteria of the owner in France.When determining the subject of responsibility,we should first identify the owner as the responsible subject,unless he/she can prove that in the event of infringement,the actual manager of the animal is another person.The following factors can beconsidered in the specific criteria for the owner:(1)Animal registration system.Therefore,in the case where the animal has been registered,the registered person is presumed to be the owner of the animal.(2)Although the animal is not registered,but the animal owner can be identified based on daily life experience or other evidence.Then the adopter is the owner and bears the responsibility for animal infringement.(3)When the ownership of animal has a disputed or is an animal without owner,the owner of the animal is determined according to who owns,uses,profits,and disposes of the animal.When the animal keeper and the manager are the same one and the owner is clear,the keeper who is the owner is the subject of responsibility.This is the complete standard of property relations.The criteria of identify the manager.Animal managers have a variety of situations,combined with the status quo of China and part of criteria of identification the animal responsibility subject in German,the analysis of the manager's identification are as follows:(1)There is a contractual relationship between the parties.The person who is the agent or has labor relationship between the keeper and the manager is not the manager.While contract other than the above,such as leases,custody contracts,etc.,the actor controls the animals based on the agreement.When the contract between the keeper and the manager is paid,the direct possessor is the direct manager of the animal.The direct possessor taking the control measures should assume the responsibility,and the indirect possessor does not need to bear the responsibility;when the keeper and the manager are unpaid,the role of the direct possession is actually the same as an assistant.The manager should be the responsibility.(2)Illegal possession of animals.The illegal possession should be the manager,and it is the responsible body of animal damage.(3)Animals keep wander.The determination of the responsible subject of stray animals can be combined with the security obligations stipulated in Article 37 of the Tort Liability Law.Firstly,the cause of animal damage is the manager.The criteria of the manager is whether the actor uses the stray animal based on his own interests and can exert a decisive influence on it.Secondly,the animal damage is based on factors other than the manager.The responsible subject of stray animals is the security obligor.For example,when the stray animals are in an open area such as a park,a road,or a square,the place manager has all the management obligations to the site,and the place manager is the responsible subject.If the animal is in a relatively closed place such as a community or a campus,the damage caused by the animal should be borne by the manager of the site,that is,the property company that manages the community is generally responsible.Part III: No matter whether it is China's General Principles of Civil Law or Tort Liability Law,there is no clear form of responsibility for animal infringement,and there is no specific judicial interpretation to make it clear.Therefore,the main dispute is whether the party is responsible for independent or joint responsibility,and the joint responsibility is divided into joint responsibility,not real joint responsibility and share liability.In combination with the current theoretical and practical status of the responsibility of the responsible subject of animal damage in China,the sole responsibility is more reasonable,that is,only one person is responsible for the responsibility between the keeper and the manager.Of course,the sole responsibility is relative.Specific to a case,the subjects may have multiple keepers or multiple managers at the same time.Then the principle of joint responsibility is followed.