The principle of fault liability about the basic principles of civil law in Jiangping Civil Law

I can't speak clearly in a few words. Speak slowly.

First, you are talking about the principle of imputation of responsibility in two fields. Totally different.

I haven't read the book "Civil Law of Lao Jiang" you mentioned, and I can't judge whether the old man is wrong. In addition, the principle of imputation is not the basic principle of civil law. It is only a rule in the application of civil law.

Generally speaking, the principle of fault liability is a general principle in the field of tort, that is, the determination of tort should be based on fault; The field of contract is a special field, which stipulates the principle of no-fault liability, that is, you don't need to be at fault in the determination of breach of contract, as long as you violate the contract, you will bear the responsibility. This is also called strict liability principle or no-fault liability principle.

Of course, in the field of tort and contract, there are other principles as a supplement.

Second, the following, first talk about the principle of liability in the field of infringement.

(a) the principle of fault liability: refers to anyone who infringes on the rights and interests of others due to his own fault (intentional or negligent) and bears tort liability for the damage caused. In other words, if there is no explicit provision in the law, there is no fault and no responsibility.

Article 6 of the Tort Liability Law? If the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability.

If the actor is presumed to be at fault according to the law, and the actor cannot prove that he is not at fault, he shall bear tort liability.

1, principle of fault liability. The first paragraph of Article 6 of the Tort Liability Law stipulates. This clause is a general clause of Tort Liability Law. As a general clause, it means that as long as it is proved that the actor's behavior conforms to the provisions of the first paragraph of Article 6 of the Tort Liability Law, it is enough to make him bear the tort liability for fault, and there is no need for more.

Example A was hospitalized with severe poisoning symptoms, and Hospital B conducted all possible examinations and diagnoses on A under the medical conditions at that time, but still could not find out the cause, and A died. Three years later, the second hospital learned that A was thallium poisoning, and when A got sick, American scientists had published scientific papers detailing the diagnosis and treatment of thallium poisoning, but the domestic medical community knew nothing about it. 1, to judge whether there is medical fault in medical staff, we should judge whether the medical behavior of medical staff has reached the standard of behavior that a qualified medical staff should meet under the medical conditions at that time. 2. The diagnosis and treatment behavior of Hospital B conforms to the above statement. Although it can't be resurrected, it has no fault and does not bear the responsibility of medical fault.

2. Presumption of fault. Paragraph 2 of Article 6 of the Tort Liability Law stipulates: "If the actor is presumed to be at fault according to the law and cannot prove that he is not at fault, he shall bear tort liability." This paragraph stipulates the imputation method of fault presumption.

The presumption of fault should be understood as: 1. Fault presumption is not an independent principle of responsibility, but belongs to the principle of fault responsibility. 2. The presumption of fault is limited to the cases prescribed by law. Therefore, the second paragraph of Article 6 of the Tort Liability Law cannot be used as a basis for prosecution alone. 3. Prove the fault, and the burden of proof is reversed. According to the basic facts, the actor is presumed to be at fault, and the actor bears the burden of proof for the opposite facts. If the perpetrator can prove that he is not at fault, he will be exempted from responsibility. 4. If the actor only proves that the third person is at fault and cannot prove that he is not at fault, he cannot be exempted.

The Tort Liability Law stipulates the following presumed fault liability:

1. If a person without civil capacity suffers personal injury in an educational institution, it is presumed that the educational institution is at fault (Article 38 of the Tort Liability Law).

2. If the patient is damaged due to one of the following circumstances, it is presumed that the medical institution is at fault: (1) illegal laws, administrative regulations, rules and other relevant diagnosis and treatment norms; (b) Concealing or refusing to provide medical records related to the dispute; Forge, alter or destroy medical records (Article 58 of Tort Liability Law).

3. If the animals kept in the zoo cause damage to people, it is presumed that the zoo is at fault (Article 8 1 of the Tort Liability Law).

4. If buildings, structures or other facilities, their shelving and hanging objects fall off and cause damage to people, it is presumed that their owners, managers or users are at fault (note: no-fault liability applies to the collapse of buildings-Article 86 of the Tort Liability Law).

5. If the stacked articles collapse and cause damage to people, it is presumed that the stacker is at fault (Article 88 of the Tort Liability Law).

6. If the forest tree breaks and causes damage to people, it is presumed that the owner or manager of the forest tree is at fault (Article 90 of the Tort Liability Law).

7. If the ground construction causes damage to people, it is presumed that the constructor is at fault (Article 9 1 of Tort Liability Law).

Example 1 Li went to the cinema to look for someone, but no one was found on the first floor. When he came to the second floor, he saw a door left unlocked with a poor voice inside, so he rushed in. Unexpectedly, this door turned out to be the entrance to the ceiling of the cinema, which Li did not understand. He stepped on the ceiling and fell into the cinema, causing the audience Zhang to be seriously injured. This case: 1, by analogy, Article 85 of Tort Liability Law applies, and the cinema assumes the responsibility of presumption of fault. Even if the cinema proves that Li is at fault, it should bear the responsibility, because the cinema can't prove that it is not at fault.

For the sake of safety, a wild zoo set up a solid protective net with an iron fence about 8 meters high. Unexpectedly, a mental patient climbed into the protective net from the outside during the onset and was injured by a tiger and died. 1. According to Article 8 1 of Tort Liability Law, animals bear the responsibility of presumption of fault. 2. If the zoo can prove the above facts, it means that it is not at fault and is exempted from responsibility.

(2) No-fault liability means that the actor damages the civil rights and interests of others. No matter whether the actor is at fault or not, if the law stipulates that he should bear tort liability, he shall bear corresponding liability in accordance with its provisions.

The Tort Liability Law stipulates the following liability without fault:

1. If a person without or with limited capacity for civil conduct causes damage to others, the guardian shall bear the liability without fault (Article 32 of the Tort Liability Law).

2. If the staff of the employing unit causes damage to others due to the execution of work tasks, the employing unit shall bear no-fault liability (Article 34 of the Tort Liability Law).

3. If the party providing personal services causes damage to others due to the service, the party receiving the service shall bear no-fault liability (Article 35 of the Tort Liability Law).

4. If the defect of the product causes damage to others, the producer and the seller shall bear the untrue joint and several liability, which belongs to no-fault liability. If the seller is at fault, he shall bear the ultimate responsibility; If the seller is not at fault, the producer shall bear the ultimate responsibility (Article 465438 of Tort Liability Law +0-43).

5. If a road traffic accident occurs between a motor vehicle and a pedestrian or a non-motor vehicle driver, the motor vehicle party shall bear no-fault liability (Article 48 of the Tort Liability Law; Article 76 of the Road Traffic Safety Law).

6. If environmental pollution causes damage to people, the polluter shall bear the liability without fault (Articles 65 to 68 of the Tort Liability Law).

7. In the case of high-risk liability, the operators and possessors of high-risk goods shall bear the liability without fault (Articles 69 to 77 of the Tort Liability Law).

8. If the raised animals cause damage to people, the animal keeper or manager shall bear the liability without fault (but the zoo shall bear the liability for presumption of fault) (Articles 78-80 of the Tort Liability Law; Articles 82-84).

9. If the collapse of a building causes damage to people, the construction unit and the construction unit shall bear the liability without fault (Article 86 of the Tort Liability Law).

10. If a medical institution violates the obligation to inform and causes damage to patients, it shall bear no-fault liability (Article 55 of the Tort Liability Law).

1 1. If medical products cause damage to patients, and medical institutions and product providers bear untrue joint and several liability, it is no-fault liability (Article 59 of the Tort Liability Law).

12. Anyone who dumps, piles up or scatters articles obstructing traffic on the road shall bear the liability without fault (Article 89 of the Tort Liability Law).

(3) Legal compensation obligation, that is, the principle of fair liability.

Article 24 of the Tort Liability Law? If neither the victim nor the actor is at fault for the occurrence of the damage, they may share the loss according to the actual situation.

(1) Elements of fair liability:

1. Neither party is responsible for the damage.

2. No-fault liability not stipulated by law.

3. There is a causal relationship between injury behavior and damage.

4. Not applying fair liability will lead to obviously unfair consequences.

(2) Fair responsibility:

1. Considering the property status of both parties and the severity of the damage suffered by the victims, both parties should share the damage reasonably.

2. It can be partially compensated or fully compensated.

(3) The Tort Liability Law stipulates three legal situations for applying fair liability:

1. Suffering damage due to being courageous (Article 23 of Tort Liability Law).

2. A person with full capacity for civil conduct falls into unconsciousness or acts out of control, causing damage to others (Article 33 of the Tort Liability Law).

3. Parabolic objects from high altitude cause damage to people, and the perpetrator is unknown (Article 87 of Tort Liability Law).

Article 23 of the Tort Liability Law? The infringer shall bear the responsibility of preventing or stopping the infringement on the civil rights and interests of others and causing his own damage. If the infringer escapes or is unable to bear the responsibility, and the infringed party requests compensation, the beneficiary shall give appropriate compensation.

Example 1 On the way home from the night shift, A found someone robbing his workmate B. A had a crush on B for a long time and went forward to stop the robbery. The robber seriously stabbed a man before he escaped. ① The injurer shall be liable for the damage suffered by A. If the injurer has sufficient compensation capacity, fair liability shall not apply. (2) Only when the offender is uncertain or unable to compensate, fair liability will be applied, and the beneficiary (b) will compensate the victim (a) appropriately. (3) The failure of a courageous person does not affect the fair responsibility.

Article 33 of the Tort Liability Law? If a person with full capacity for civil conduct is temporarily unconscious or his behavior is out of control, causing damage to others, he shall bear tort liability; If there is no fault, the victim shall be properly compensated according to the economic situation of the actor.

If a person with full capacity for civil conduct temporarily loses consciousness or loses control of his behavior due to drunkenness or abuse of narcotic drugs or psychotropic drugs, he shall bear tort liability.

Example 2 Xiao S suffers from sleepwalking, but he doesn't know it. One night, Xiao S sleepwalked into a neighbor's house and injured Da S ... In this case: ① Xiao S was unconscious and innocent when he caused damage to Da S, and Xiao S did not bear tort liability; ② Fair liability is applicable, and the small S compensates the big S appropriately.

Article 87 of the Tort Liability Law? If throwing objects from buildings or falling objects from buildings causes damage to others, and it is difficult to determine the specific infringer, in addition to being able to prove that he is not an infringer, the user of the building who may cause damage shall compensate.

One day, when Li was walking downstairs in Beijing State Taxation Bureau, he was injured by an ashtray thrown from the office, and it was difficult to determine whether the ashtray was thrown from the office. ① There are two preconditions for the application of Article 87 of Tort Liability Law: first, the formation of differentiated ownership; Second, it is difficult to identify the perpetrators. (2) In this case, if the injurer can determine (the tax bureau owns the whole building), Article 85 of the Tort Liability Law shall apply, and the tax bureau shall assume the responsibility of presumption of fault.

Three, the following is the principle of liability in the field of contract.

The principle of strict liability is mainly applicable to the field of contracts. The so-called strict liability principle, also known as the principle of no-fault liability or the principle of objective liability, refers to the imputation principle that the parties who violate the contract should bear the contract liability regardless of whether they are subjectively at fault or not.

(a) the scope of application of the principle of strict liability.

The principle of strict liability is clearly stipulated in the general principles of contract law in China, so it is the main imputation principle of contract responsibility, and its application in contract law is of universal significance.

But in fact, China's contractual liability does not follow a single principle of liability, but adopts a diversified principle of liability, so there are exceptions to the application of the principle of strict liability, and the principle of strict liability cannot be applied under the following circumstances:

1, the principle of fault liability applies here.

The principle of fault liability in China's contract law mainly occurs in the following situations:

(1) The occasion of free contract. Because there is no payment problem in a free contract, the requirements for the unprofitable party should be lower, and the contract law adopts the principle of fault liability to balance the interests of both parties. Articles 189, 374 and 406 of the Contract Law all stipulate the gift contract, free custody contract and free entrustment contract.

(2) occasions that mean debt. The so-called means debt means that the debtor only promises to provide the creditors with the means they have, but does not guarantee that they can achieve certain results, such as medical service contracts and entrustment contracts. Because whether the debtor has fulfilled the contract cannot be measured by whether it has achieved some results, the debtor should only assume the obligation to deal with the problem with reasonable care and skill. If the debtor's behavior does not reach the standard that a normal and cautious person should do, he is at fault and should bear the responsibility. For example, Article 406 of the Contract Law stipulates that "if the paid entrustment contract causes losses to the client due to the fault of the client, the client may demand compensation for the losses."

2. Apply the principle of absolute liability (i.e. strict liability and no-fault liability).

Absolute liability in China's contract law mainly occurs in the following situations:

(1) Money and debt. It is generally believed that the lack of performance ability of the parties cannot be the reason for exemption. Therefore, when the monetary debt cannot be fulfilled in time, the debtor shall be liable for breach of contract for whatever reason. Although this principle is not clearly stipulated in China's contract law, it has been confirmed in judicial practice and should be interpreted as such.

(2) the debt of species. If the seed is damaged or lost before delivery to the buyer due to reasons not attributable to the debtor, the debtor shall be liable for non-payment. Although China's "Contract Law" does not provide for this, it should be recognized from the legal analysis.

(3) Security guarantee debt. That is, the parties to a contract have the obligation to prevent the other party from suffering damage. The most typical is the carrier's liability in the passenger transport contract. In this kind of contract, the carrier is not only responsible for transporting passengers to the agreed place, but also for the safety of passengers on the way. This is an obligation that the carrier must bear, and it cannot be exempted from liability because of force majeure. For example, Article 30 1 of the Contract Law stipulates that "the carrier shall be liable for damages for the casualties of passengers during transportation, except that the casualties are caused by the passengers' own health or the carrier proves that the casualties are caused by the passengers' intentional or gross negligence."

(4) Liability after delayed performance. This principle is also clearly stipulated in China's contract law. Article 17 of the law stipulates: "... if the parties have force majeure after the delay in performance, they cannot be exempted from liability."

(5) Contract liability for breach of guarantee obligations. The so-called guarantee obligation means that in a paid contract, the debtor should guarantee the integrity of his rights and the quality of the subject matter. If the debtor violates this guarantee obligation, no matter what causes the defects, he shall bear the contract responsibility. This is called defect guarantee liability in civil law countries, which is divided into right defect guarantee and object defect guarantee. China's Contract Law only stipulates the former (see Article 150 of the Contract Law), while the latter is treated as improper performance of the contract. However, the Product Quality Law of 1993 clearly stipulates the quality assurance obligations of producers and sellers. Since the obligation of protection is stipulated, it is naturally unnecessary to prove why the violator violated the obligation, so it should be absolute responsibility.

(2) Reasons for exemption under the principle of strict liability.

Strict liability is different from fault liability. Fault is a positive concept, which tells us the necessary conditions for imputation. Strict liability is a negative concept, which tells us that liability can exist without fault and can be exempted from liability through legally recognized exemptions. Therefore, under what circumstances can be exempted from liability has become an extremely important issue in the principle of strict liability. According to the provisions of China's contract law, the exemption under strict liability should be limited to the following items:

1, force majeure. Force majeure, as a statutory exemption, refers to "unforeseeable, unavoidable and insurmountable objective circumstances", which usually includes natural disasters, wars and the exercise of legislative, judicial and administrative functions by the state. Although this situation leads to the occurrence of damage consequences, the debtor is not liable for breach of contract because there is no causal relationship between the debtor's behavior and the occurrence of damage. However, the occurrence of force majeure is not a complete and absolute exemption. According to the provisions of the Contract Law, if a party is unable to perform the contract due to force majeure, it shall notify the other party in time to reduce the possible losses to the other party, and shall provide proof within a reasonable time.

2. Reasons of creditors. If the debtor's breach of contract is caused by the creditor, the debtor's liability shall be exempted or reduced. In the civil law countries that pursue the principle of fault liability, the principle of fault offset is adopted, that is, when the creditor is also at fault for breach of contract, the debtor's contractual liability is reduced or completely exempted. Due to the strict liability adopted in China's contract law, the principle of fault offset has no applicable space here. However, Article 120 of the Contract Law stipulates that "if both parties violate the contract, they shall bear their respective responsibilities", which is a flexible application of the principle of fault offset. However, due to the introduction of "performing the right of defense at the same time" and "performing the right of defense first", "breach of contract by both parties" has become a controversial issue at present. To say the least, even if both parties admit the breach of contract, the provisions of this article obviously limit the creditor's exemption to a rather narrow range. Therefore, it should be understood that if the creditor's own behavior contributes to the other party's breach of contract, whether the behavior itself constitutes a breach of contract or not, the other party's liability can be reduced or exempted.

3. Exemption clauses agreed in the contract. Although contractual liability is as mandatory as other civil liabilities, its nature and compensation reflect that it is more "private" as a responsibility in private law, so its provisions are not mandatory norms but arbitrary norms. If the parties voluntarily agree to exempt from contractual liability, there is no need for the law to intervene forcibly. Therefore, most countries allow the parties to be exempted from contract liability by agreement within the scope permitted by law, and our contract law also clearly affirms this. However, if the exemption clause is improperly used, it will cause great unfairness to creditors, and then endanger the realization of social justice, which is particularly obvious in standard contracts. In this regard, the contract law, like other countries, has made necessary restrictions on the exemption clause:

First, the exemption clause shall not exclude the application of mandatory legal norms, such as the provisions on the effective elements of civil legal acts, otherwise the exemption clause will be invalid.

Second, the exemption clause does not exclude the civil liability for causing personal injury to the other party;

Third, the exemption clause shall not exclude the liability for intentional or gross negligence.

4. Why should the principle of strict liability be applied in the contract field?

First of all, it provides sufficient guarantee for the performance of the contract and conforms to the principle of strict compliance with the contract. The advantage is that the plaintiff only needs to prove the fact that the defendant failed to perform the contractual obligations or the performance of the contractual obligations did not conform to the agreement, and does not need to prove that the breaching party is at fault, nor does it need to prove that it is not at fault.

The possibility of exemption for the breaching party lies in the existence of exemption reasons, which are also objective facts and relatively easy to prove. Therefore, the implementation of the principle of strict liability is conducive to facilitating the referee and solving disputes in time. Especially under the principle of strict liability, the liability for breach of contract is directly related to the breach of contract, and the direct causal relationship between them is extremely clear, which is very conducive to urging the parties to fulfill their contractual obligations and maintaining the authority and seriousness of the contract. Admittedly, the principle of strict liability also has its own defects. On the one hand, in many cases, it is not conducive to accurately determining the responsibility, because in some cases, the responsibility must be determined according to the fault of the parties, while the principle of strict liability is not conducive to distinguishing the responsibilities of both parties in some clear cases, and the responsibility is determined according to the fault of both parties. On the other hand, it is not conducive to punishing wrong behavior and realizing contractual justice.

? In a word, the principle of imputation is a complex concept, and the application of each principle has its own application environment. For example, the principle of fault liability should be universal, but this universal principle must also mean that it cannot be applied in some specific fields or special circumstances, and it has its particularity in the contract field, so the principle of strict liability, that is, the principle of no-fault liability, is stipulated.