Preface

The long-expected Tort Law of the People’s Republic of China (hereinafter the “Tort Law”) was adopted at the 12th session of the Standing Committee of the 11th National People's Congress on December 26, 2009 and shall come into effect on July 1, 2010.

Legislative Background and Meaning

Infringing activities such as online infringement and infringement caused by defective products take place almost every day. As the society develops, new types of infringement have arisen and are occurring more often. However, the provisions under the current PRC laws and regulations are more dispersed and express only general principles; they lack detailed rules on the common issues with respect to tortious liability. Moreover, the present provisions cannot fully satisfy the needs of social life and judicial practice. In order to better protect the legitimate rights and interests of civil entities and promote social stability and harmony, it is necessary to provide for tortuous liability; the new regulations thereupon are urgent in order to further formulate a more perfect and practicable tort law. The practical effects of the promulgation of the Tort Law will be seen in the perfection of our present socialistic legal system, the protection of the legitimate rights and interests of civil entities, the attribution and allocation of tortious liability, the settlement of social conflicts, the precaution against and prevention of civil infringement disputes, the unified trial standard and legal application for civil cases, and the building of a harmonious social environment. An overall understanding of the Law, a good command of the key issues contained in the Law, a grasp of the legislative spirit and the original thoughts of the legislators, and a review of the shortcomings on the legislative level will help improve lawyers’ expertise and their service quality, enhance lawyers’ ability to apply correct laws and regulations for dispute solutions, protect the parties’ legitimate rights and interests more effectively, and promote the building of a harmonious society. The following text will mainly focus on the innovative provisions of the Tort Law, which are formulated based on a review of the previous legislative shortcomings and a combination of the presently common types of infringement.

Legislative Innovation and Value

The Tort Law provides comprehensive protection for a series of personal and property rights; many of the provisions are concluded for the first time in Chinese legislation.

1. Compensation for mental distress is explicitly provided for the first time.

Since the foundation of the People’s Republic of China, under the legislative tradition influenced by the Soviet civil law theories and legislative experience, reasonableness in the compensation for mental distress was denied and excluded on the ground that such compensation reflected the civil law system for the bourgeoisie. It was thought at that time that human dignity could neither be valued nor be compensated by money, so compensation for mental distress was denied and excluded for a long time both theoretically and legislatively. It was not until the promulgation of the 1986 General Principles of the PRC Civil Law and the subsequent judicial interpretations of the Supreme People’s Court (such as the Answers to Several Questions in Trying Cases Concerning the Right of Honor, the Interpretations on Compensation for Mental Distress, and the Interpretations on Compensation for Personal Damages) that compensation for mental distress in connection with human dignity and the human body was affirmed and regulated in a more detailed way. However, the concept of “compensation for mental distress” was never explicitly proposed and provided at the legislative level. In the meantime, the draft amendment to the State Compensation Law is intended to establish the system of compensation for mental distress, but this is restricted to the field of administrative law only.

Article 22 of the Tort Law provides: “with respect to infringements of a party's personal rights and interests that cause such party serious mental distress, the injured party may claim compensation for mental distress.” In this circumstance, the judge will have a legal basis when ordering the infringer or the person liable for the infringement to pay a certain compensation for the mental distress to the victim or the victim’s close relatives according to the extent of the distress. Such an article will both comfort the victim or the victim’s close relatives and punish the infringer, and thus will act to send a negative message against such acts, educate people about the law, and prevent the recurrence of similar infringing activities. It is understood from this article that compensation for mental distress is strictly limited to infringements against personal rights and interests, which shall include the rights of life, health, honor and privacy, exclusive of infringements on property rights and interests. If property rights and interests are infringed, the compensation shall be made according to the losses of the properties. Notwithstanding the aforesaid Article 22, it is generally considered that compensation cannot be applied for minor mental distress, because the litigation cost will be considerable otherwise. In response to this problem, more detailed provisions can be included in future judicial interpretations or compensation can be determined from case to case.

However, there is no denial that this article affirms the system of compensation for mental distress for the first time at the legislative level and provides a definite legal basis for judicial trials. As a milestone in the history of Chinese legislation, this article will surely have a great and positive influence on the perfection of the Chinese civil law system.

2. Online infringement and the possible methods for assuming liability are explicitly provided for the first time.

Although some presently popular online activities such as “human flesh search” (internet mass hunting) have to some extent achieved the effect of condemnation and negative comment on uncivilized or immoral phenomena in society, such online activities as the “human flesh search” will inevitably involve photos or details of the lives of the involved people, which may dig deeply into those people’s privacy. While the disclosure of such privacy on the internet will usually bring negative influence to the persons involved, no necessary legal provisions are given in this respect and no standard is given as to whether the launch of a “human flesh search” or the search conduct itself should be lawful or not; as a result, “human flesh searches” may easily be abused. In this circumstance, it has become an urgent task to regulate online activities such as the “human flesh search”. Meanwhile, due to the random release of information on the internet, infringements such as those where an internet user infringes another person or entity’s reputation by means of internet services have also taken place in real life. However, the General Principles of Civil Law and the relevant laws or regulations do not explicitly regulate said online infringements.

Article 36 of the Tort Law provides: “where an internet user engages in tortious conduct through internet services, the injured party shall have the right to inform the internet service provider that it should take necessary action such as by deleting content, screening, breaking links, etc. Where an internet service provider fails to take necessary action after being informed, it shall be jointly and severally liable with regard to the additional injury or damage suffered to the internet user. Where an internet service provider knows an internet user is infringing other people's civil rights and interests through its internet service but fails to take necessary action, it shall be jointly and severally liable to the internet user.”

In short, the Tort Law has adopted two rules with respect to online infringements. The first rule is “knowledge of (the infringement)”, i.e., if an internet service provider (hereinafter the “ISP”) knows that certain information constitutes an infringement but does not take any measure to stop the spread of such information, then he or it should be held liable without the need to notify him or it of the infringement. For example, if someone publishes indecent photos of another person on the internet and the ISP knows that such publication constitutes an infringement, the ISP shall delete the infringing photos in a timely manner. The second rule is “notification of the infringement”, specifically, the ISP may not know or may feel it difficult to judge whether the publication of certain information has committed an infringement, in which circumstance the victim shall notify the ISP of the infringement and request that the information be deleted or screened or that the relevant links be broken. After such notification, if the ISP still does not take any necessary measure within a reasonable time, he or it shall be held liable.

3. The recall system of defective products is explicitly provided for the first time.

As is known to all, with respect to products that have entered circulation, if such products are found defective and therefore cause damages to persons, consumers may claim damages against the sellers and manufactures of the products under the Law on the Protection of Consumer Rights and Interests and the Law on Product Quality. However, as to whether potential defective products can be prevented, in other words, whether the sellers or manufacturers of the products should take positive remedial measures once defects are found in the products, such as sending public warnings or recalling the sold products, the laws do not give explicit provisions. Furthermore, looking at the legislations of other countries, the recall system of defective products has been codified into regulatory documents in many countries.

Articles 42 and 43 of the Tort Law are basically consistent with the provisions under the Law on Product Quality, and Article 44, concerning transportation and warehousing, actually follows the provisions under the General Principles of the Civil Law. Major innovation in the Tort Law lies in Article 46 – the recall system of defective products and Article 47 – punitive damages. Article 46 provides, “Where a product is found to be defective after it is put into circulation, the producer and the seller shall give timely warnings, recall the defective product, or take other remedial measures. If any damage is caused due to the untimeliness or ineffectiveness of remedial measures, the producer and the seller shall bear tortious liability.” The recall system of defective products may effectively solve certain disputes arising from product quality problems. Under the current system, some enterprises might find significant defects in their products after the products are launched onto the market for some time, but choose to neglect the defects since there are no provisions on remedial measures such as warning and recall or liability for not taking these measures; as a result, the number of victims who were affected by these defects increased and damages were caused that could have been easily avoided. After the Tort Law comes into effect, such problems will be solved to a large extent and consumers’ interests will be better protected. Meanwhile, this may also be good news for enterprises, since the enterprises will strengthen their monitoring over the products and there will be fewer quality problems and therefore a lower risk of damages incurred therefrom.

Conclusion

Provisions with respect to tortious activities and the corresponding liabilities involve far more than the abovesaid. This article is only trying to summarize the innovative provisions and give simple explanations thereof. The Tort Law provides a legal basis for several new types of infringement and is of significance to legal practice. Meanwhile, the promulgation of the Tort Law has not only represented a key step towards a perfect civil law code, but also shows concerns about human life and health. The Tort Law has not only provided legal principles for adjusting present social conflicts, but also stepped firmly towards a more justified, equal, stable and harmonious society.

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