Liability Determination For Damage Caused By Blockage Of Sewer Pipes In Buildings With Differentiated Ownership

Cases of unknown infringers are quietly entering our lives.In the case of damage caused by blockage of sewer pipes in Jiangsu Province,the first-instance,second-instance and retrial third-level courts respectively dismissed the claim,analogously used the high-altitude parabolic rule,and rejected the claim.The relevant articles of the "Civil Code" are Articles 1254 and 1165,which are based on the rule of parabolic or the principle of fault liability.From the analysis of the judgments of all property damage dispute cases involving blockage of sewer pipes in the building division in the past three years and the infringer is unknown,although there are differences in the subject composition,trial procedures,judgment results,and application of laws,some issues need to be emphasized attention and emphasis:The number of lawsuits has increased significantly,the phenomenon of different judgments in the same case is serious,the source of blockages must be clarified,and the responsibilities of other subjects deserve attention.Regarding the determination of the responsibility of the defendant owners in all cases of damage caused by blockage of sewer pipes in the building division,the judgment results of the practitioners mainly reflect three viewpoints:the defendant is responsible,the defendant is exempt from liability,and the plaintiff and defendant share equally.Among them,there are different ways of thinking about the responsibility of the defendant:Deal with common dangerous behavior,think that owners who share the same sewer pipe may use it improperly,and presume the fact that residential sewage discharge by the owners of the community is a common dangerous behavior.In this regard,the author believes that there is a paradox in logic,not everyone has implemented dangerous behaviors,and domestic sewage discharge behaviors are not dangerous behaviors;Parabolic rule by analogy.It is believed that the act of throwing objects through pipes and other channels also causes damage to the person or property of the infringed person.The auth or denies this,because the building distinguishes all problems caused by blockage of sewer pipes,which do not belong to special circumstances that must be intervened by law;The reason for the infringement of several persons identified as unintentional contact is that the"possibility" of improper use is presumed to be the "certainty" of improper use,that is,the owners who share the same pipeline have all committed improper use.In this regard,the author believes that it is also difficult to be consistent in logic.In the case where the specific wrongdoer cannot be identified,it cannot be determined that"proprietors who share the same sewer pipe" have committed torts.Taking the"presumption of responsibility" method to presume the "possibility" of the owner’s improper use behavior as "certainty" will lead to the arbitrary expansion of the subject of responsibility;The point of the defendant’s exemption from liability lies in the application of Article 1165 of the "Civil Code" on fault liability,and the plaintiff bears the burden of proof for the constituent elements of tort liability.In this regard,the author believes that it is too strict to apply the principle of fault liability to reject the claim,and we should face up to the difficulty of the plaintiff’s burden of proof.The basis for the plaintiff and the defendant to share equally lies in the application of the principle of fairness.It is believed that the plaintiff’s own loss violates the principle of fairness and should be shared by both the plaintiff and the defendant.The author agrees with this view.Theoretical circles have seldom discussed this issue,and there is no authoritative general statement at present.Regarding the reasonable determination of the responsibility for damage caused by blockage of all sewer pipes in buildings,the author believes that the principle of fairness can be applied for three reasons:It is in line with the risk-sharing philosophy of the risk community.Public sewers are inherently risky due to their closed nature、All owners become a risk community due to the common use of sewer pipes、The sharing of losses by the responsibility community in the risk community is in line with fairness and justice;It conforms to the economic efficiency principle of law and economics and Calabresi’s "accident cost theory";It is consistent with the concept of fair treatment embodied in the adjacent relationship,and is the result of weighing the interests of all parties in the adjacent relationship of real estate.The average sharing here is just a basic concept,not an absolute average of the victims’ losses,and the relevant factors that affect the responsibility should be considered in light of the specific circumstances of the case.For example,whether the victim was negligent in management when the water returned to the sewer pipe?After the sewer pipe was blocked,did the victim actively clear it?Will the upstairs owner cooperate with stopping the water supply,etc.If there is a subject that further expands the loss,it shall bear a higher proportion of the loss,and the remaining subjects shall share the remaining proportion on average.