Order of the President of the People’s Republic of China
No. 21
The Tort Liability Law of the People’s Republic of China, adopted at the 12th Meeting of the Standing Committee of the Eleventh National People’s Congress of the People’s Republic of China on December 26, 2009, is hereby promulgated and shall go into effect as of July 1, 2010.
Hu Jintao
President of the People’s Republic of China
December 26, 2009
Tort Liability Law of the People’s Republic of China
(Adopted at the 12th Meeting of the Standing Committee of the Eleventh National People’s Congress on December 26, 2009)
Contents
Chapter I General Provisions
Chapter II Constitution and Mode of Liability
Chapter III Non-liability and Diminished Liability
Chapter IV Special Provisions on the Subject of Liability
Chapter V Product Liability
Chapter VI Motor Vehicle Accident Liability
Chapter VII Medical Damage Liability
Chapter VIII Environmental Pollution Liability
Chapter IX High Risk Liability
Chapter X Liability for Damage Caused by Domesticated Animals
Chapter XI Object Damage Liability
Chapter XII Supplementary Provisions
Chapter I
General Provisions Article 1 This Law is formulated for the purposes of protecting the legitimate rights and interests of civil subjects, defining tort liability, preventing and punishing acts of tort, and promoting social harmony and stability. Article 2 Tort liability shall be borne in accordance with this Law for any infringement of civil rights.
“Civil rights” as mentioned in this Law refer to personal and property rights and interests, including, inter alia, the right to live, right to health, right of name, right of reputation, right of honor, right to portrait, right to privacy, right of self-determination in marriage, guardianship, ownership, usufructuary right, real right for security, copyright, patent right, exclusive right to use trademark, right of discovery, stock rights, and right of inheritance. Article 3 The infringed shall be entitled to request the tortfeasor to bear tort liability. Article 4 The tortfeasor shall bear administrative or criminal liability for the same act, and this shall not affect the bearing of tort liability in accordance with the law.
In the event that the assets of the tortfeasor are insufficient to pay tort liability and administrative or criminal liability for the same act, the tortfeasor shall first and foremost bear tort liability. Article 5 Where other laws provide special provisions on tort liability, such provisions shall prevail. Chapter II
Constitution and Mode of Liability Article 6 A person shall bear tort liability for the infringement of other’s civil rights out of that person’s fault.
If a person is presumed to be at fault in accordance with the law and that person is unable to prove otherwise, that person shall bear tort liability. Article 7 If a person infringes upon the civil rights of others through his actions and he is liable for tort in accordance with the provisions of the law, regardless of whether he is at fault, such provisions shall prevail. Article 8 If two or more persons jointly infringe on the rights of others resulting in damages, they shall bear joint and several liability. Article 9 A person who aids or abets any other person in committing a tort shall be bear joint and several liability.
A person who aids and abets any other person with no or limited capacity for civil conduct in committing a tort shall bear liability for the tort; the guardian of the person with no or limited capacity for civil conduct shall bear corresponding liability if he fails in fulfilling his guardianship obligation. Article 10 If an act by two or more persons endangers the safety of others and their property and the actions of one or more members in the said group result in damage to others, the tortfeasor(s) shall bear tort liability if they can be identified; if they cannot be identified, the persons committing the act shall bear joint and several liability. Article 11 If acts of tort by two or more persons severally result in the same damage and the act of tort by each one of them is suffice to cause the full extent of the damage, the said persons shall bear joint and several liability. Article 12 If acts of tort by two or more persons severally result in the same damage and their respective liability can be determined, the said persons shall bear liability correspondingly. If their respective liability cannot be determined, the said persons shall bear equal liability for damages. Article 13 If tortfeasors incur joint and several liability in accordance with the law, the infringed shall be entitled to request all or any one of the persons subject to joint and several liability to bear liability. Article 14 The amount of compensation to be incurred by the persons subject to joint and several liability shall be determined according to their respective liability. If the degree of their respective liability cannot be determined, compensation liability shall be borne equally.
If the compensation made by a person subject to joint and several liability exceeds the rightful amount due, they shall be entitled to claim reimbursement from the other person(s) subject to joint and several liability. Article 15 Tort liability is mainly borne through:
(1) The cessation of the infringing act;
(2) The removal of an obstacle;
(3) The elimination of danger;
(4) The restitution of property;
(5) Restitution to the original state;
(6) Compensation for loss;
(7) A formal apology; and
(8) The elimination of ill effects and the restoration of reputation.
The above can be borne singularly or in combination. Article 16 In the event of tort resulting in bodily harm, compensation in the form of, inter alia, medical, nursing and transportation expenses shall be made as reasonable payments for treatment and rehabilitation expenses and for income loss from loss of working time. In the event of tort resulting in disability, further compensation shall be made in the form of expenses for auxiliary appliances for living and disability compensation. In the event of tort resulting in death, further compensation shall be made in the form of funeral expenses and death compensation. Article 17 In the event of multiple deaths arising from the same tort, compensation of equal amounts may be determined. Article 18 Immediate relatives of a person killed by a tortfeasor shall be entitled to seek that the tortfeasor bear tort liability. If the infringed is an organization and the said organization is separated or merged, the organization with inheritance rights thereto shall be entitled to seek the tortfeasor to bear tort liability.
In the event of death of the infringed, the person who has paid reasonable expenses of the infringed in the form of, inter alia, medical fees and funeral expenses shall be entitled to seek compensation from the tortfeasor, except for expenses already borne by the tortfeasor. Article 19 For the infringement of property, property loss or damage shall be calculated based on the market rate at the time when the loss or damage is incurred or by other methods. Article 20 Loss compensation shall be made according to the loss suffered by the infringed for loss of assets arising from infringement upon personal rights and interests. If such loss is indeterminable and the tortfeasor gains from the tort, compensation shall be made on the basis of such gains; if such gains are indeterminable and the infringed and tortfeasor fail to reach an agreement on the amount of compensation, either may file a lawsuit with the people’s court and the court shall determine the amount of compensation based on the actual situation. Article 21 For acts of tort that endanger personal safety and the safety of the property of others, the infringed may seek the tortfeasor to bear tort liability through, inter alia, the cessation of the infringing act, the removal of any obstacles and the elimination of danger. Article 22 For acts of tort that infringe on personal rights and interests and result in serious mental injury, the infringed may seek compensation for mental injury. Article 23 If a person suffers damages in the course of preventing or deterring the infringement of other’s civil rights, the tortfeasor shall bear liability. If the tortfeasor flees or is in no capacity to assume liability and the infringed seeks compensation, the beneficiary shall make suitable compensation. Article 24 If damage is neither the victim nor the tortfeasor’s fault, the loss may be borne by both parties according to the actual circumstances.
Article 25 After damage occurs, the parties concerned may negotiate the payment method for compensation. If they fail to reach a consensus compensation shall be paid in a lump sum. If there is any genuine difficulty in making a lump sum payment, compensation may be made in installments provided that a corresponding guarantee is provided. Chapter III Non-liability and Diminished Liability Article 26 The liability of the tortfeasor may be diminished if the infringed is also at fault for the damage. Article 27 The tortfeasor shall not bear liability for any damage intentionally caused by the victim. Article 28 For damage caused by a third party, the said party shall bear tort liability. Article 29 No liability shall be borne for damages caused by force majeure. If the law otherwise provides, such provisions shall prevail. Article 30 No liability shall be borne for damages arising from justifiable defense. A person who acts in justifiable defense shall bear appropriate liability for undue damages arising from justifiable defense that exceeds the limits of what is necessary. Article 31 For damages arising from emergency avoidance of danger, the person giving rise to such danger shall bear liability. If such danger arises from natural factors, the person who undertakes emergency avoidance of danger shall not bear liability, or shall appropriately pay compensation. The person who undertakes emergency avoidance of danger shall bear appropriate liability if inappropriate measures are taken for such avoidance or if the measures taken exceed the limits of what is necessary, resulting in undue damages. Chapter IV Special Provisions on the Subject of Liability Article 32 For damages caused by a person with no or limited capacity for civil conduct, their guardian shall bear tort liability. The tort liability of the said guardian may be diminished if they have fulfilled their guardianship obligation.
For damages caused by a person with no or limited capacity for civil conduct who owns assets, compensation shall be made from the said assets. Any shortfall in compensation shall be made by their guardian. Article 33 If a person with full civil capacity causes any damage from a temporary loss of consciousness or control through his wrongdoing, he shall bear tort liability. If there is no wrongdoing, compensation shall appropriately be made to the victim by the tortfeasor on the basis of the tortfeasor’s economic status.
If a person with full civil capacity causes any damage from a temporary loss of consciousness or control due to drinking or abuse of narcotic drugs or psychotropic substances, they shall bear tort liability. Article 34 If an employee causes damage to others in carrying out a work task, the employing organization shall bear tort liability.
While dispatching labor, if the employee dispatched causes damage to others in carrying out a work task, the organization accepting the dispatched labor shall bear tort liability. If the dispatching organization is at fault, it shall bear the corresponding additional liability. Article 35 For labor relations between individuals, if the party providing labor causes damage to others due to the labor provided, the party receiving such labor service shall bear tort liability. If the party providing labor suffers damage due to the labor, either party shall bear liability based on their own wrongdoing. Article 36 Internet users and internet service providers shall bear tort liability if they utilize the internet to infringe upon civil rights of others.
If an internet user commits tort through internet services, the infringed shall be entitled to inform the internet service provider to take necessary measures, including, inter alia, deletion, blocking and disconnection. If the internet service provider fails to take necessary measures in a timely manner upon notification, it shall be jointly and severally liable with the said internet user for the extended damage.
If an internet service provider is aware that an internet user is infringing on the civil rights and interests of others through its internet services and fails to take necessary measures, it shall be jointly and severally liable with the said internet user for such infringement. Article 37 Managers of public places, including, inter alia, hotels, shopping malls, banks, stations and places of entertainment, and organizers of mass activities shall bear tort liability for damages to others arising from their failure to fulfill security obligations.
If the act of a third party results in damage to others, the said third party shall bear tort liability, and the manager or organizer shall bear the corresponding additional liability if the said managers or organizers has failed to fulfill their security obligations. Article 38 For personal injury suffered by a person with no capacity for civil conduct during the course of studying or living in a kindergarten, school or other institution of learning, the kindergarten, school or institution of learning shall bear liability unless it proves that it has fulfilled its educational and managerial responsibilities. Article 39 For personal injury suffered by a person with limited capacity for civil conduct during the course of studying or living in a school or other institution of learning, the school or institution of learning shall bear liability if it has failed to fulfill its educational and managerial responsibilities. Article 40 If personal injury is inflicted on a person with no or limited capacity for civil conduct during the course of studying or living in a kindergarten, school or any other institution of learning by a person, other than an employee of the kindergarten, school or institution of learning, the tortfeasor shall bear the tort liability. The kindergarten, school or institution of learning shall be liable for corresponding additional liability if it has failed to fulfill its managerial responsibilities. Chapter V Product Liability Article 41 A manufacturer shall bear tort liability if its product causes damage to others due to a defect. Article 42 If a product is defective through the fault of the seller and results in damage to others, the seller shall bear tort liability.
If the seller is unable to name the manufacturer or supplier of the defective product, the seller shall bear tort liability. Article 43 In the event of damage being caused by a defective product, the infringed may seek compensation from the manufacturer and seller of the said product.
If a defect is caused by the manufacturer, the seller shall be entitled to seek reimbursement from the manufacturer for compensation they have made.
If a defect in a product occurs through the fault of the seller, the manufacturer shall be entitled to seek reimbursement from the seller for compensation they have made. Article 44 If a product is defective through the fault of a third party, including, inter alia, the transporter or the party providing storage, and results in damage to others, the manufacturer or seller of the said product shall be entitled to seek reimbursement from the relevant third party for compensation they have made. Article 45 If a defective product endangers the personal safety or property of others, the infringed shall be entitled to seek the manufacturer or seller to assume tort liability through, inter alia, the removal of an obstacle and the elimination of danger. Article 46 If a defect is found in a product after it has been distributed, the manufacturer and the seller shall take remedial measures in a timely manner including, inter alia, warnings and recalls. In the event of damage arising from a failure to take remedial measures in a timely manner or taking inadequate remedial measures, they shall bear tort liability. Article 47 In the event of death or serious damage to health arising from the manufacture or sale of a product known to be defective, the infringed shall be entitled to claim corresponding punitive compensation. Chapter VI Motor Vehicle Accident Liability Article 48 Tort liability shall be borne for damages arising from traffic accidents involving motor vehicles in accordance with the relevant provisions of the Law on Road Traffic Safety. Article 49 In the event of, inter alia, rental or loan of a motor vehicle in which the owner is not the user, the insurance company shall pay compensation within the limits of compulsory motor vehicle insurance liability for any traffic accident that the said motor vehicle user is accountable for. The user of the motor vehicle shall bear liability for any shortfall in compensation. If the owner of the motor vehicle is accountable for the damage, they shall bear the corresponding compensation liability. Article 50 If a motor vehicle is involved in a traffic accident following a transfer through, inter alia, a sale and purchase transaction between parties and the said vehicle has been handed over but the transfer in ownership has not yet been registered, the insurance company shall pay compensation within the limits of compulsory motor vehicle insurance liability for any traffic accident that the said motor vehicle user is accountable for. The assignee shall bear liability for any shortfall in compensation. Article 51 If an assembled vehicle or a vehicle that meets scrapping standards is transferred through, inter alia, a sale and purchase transaction, the assignor and the assignee shall be jointly and severally liable for any damage arising from a traffic accident caused by the said vehicle. Article 52 For any damage arising from a traffic accident caused by a stolen or hijacked motor vehicle, the person that stole or hijacked the said motor vehicle shall be liable for compensation. An insurance company that pays rescue fees in advance within the limits of compulsory motor vehicle insurance liability shall be entitled to seek reimbursement from the party responsible for the traffic accident. Article 53 If the driver of a motor vehicle flees the scene after a traffic accident and the said vehicle is under compulsory insurance, the insurance company shall pay compensation within the limits of compulsory motor vehicle insurance liability. If the motor vehicle is unknown or if it is not under compulsory insurance, the social assistance fund for road traffic accidents shall make payment in advance for necessary expenses, including, inter alia, expenses for the emergency rescue of the infringed or funeral expenses, and the management organization of the said fund shall be entitled to seek reimbursement from the party responsible for the accident. Chapter VII Medical Damage Liability Article 54 If any medical or its medical personnel is responsible for damage inflicted on a patient during the course of diagnosis and treatment, the medical organization shall be liable for compensation. Article 55 Medical personnel shall explain to a patient in the course of diagnosis and treatment their condition and medical measures. If surgery, special examination or special treatment is required, medical personnel shall explain to a patient, inter alia, the medical risks and alternative treatment plans in a timely manner and obtain their written consent. If it is not suitable to explain the same to a patient, medical personnel shall do so with the immediate relatives of a patient and obtain their written consent.
If medical personnel fail to fulfill their obligations stated in the preceding paragraph and cause damage to a patient, the medical organization shall be liable for compensation. Article 56 If the opinion of a patient or their immediate relatives cannot be consulted due to an emergency, including, inter alia, the resuscitation of a patient in a critical condition, the appropriate medical treatment may be administered immediately upon the approval of the person in charge or authorized person in charge of the medical organization. Article 57 If medical personnel, in the course of diagnosis and treatment, fail to fulfill their obligations in line with prevailing medical standards and cause damage to a patient, the medical organization shall be liable for compensation.
Article 58 A medical organization shall be presumed to be at fault if damage is inflicted on a patient in any of the following circumstances:
(1) Violation of provisions of laws, administrative regulations, rules, etc., relating to diagnostic and treatment practices;
(2) Concealment of or refusal to provide medical records related to the dispute; or
(3) Forgery, falsification or destruction of medical records. Article 59 If a patient suffers damage due to defective drugs, disinfectants or medical devices, or from transfusing blood that does not meet certain standards, they may seek compensation from the manufacturer or blood-supplying organization as well as from the medical organization. If the said patient seeks compensation from the medical organization, the medical organization is entitled to claim reimbursement from the manufacturer or blood-supplying organization liable for the damage after compensation. Article 60 A medical organization shall not be liable for compensation in any of the following circumstances involving damage to a patient:
(1) A patient or their immediate relative(s) refuses to cooperate with the medical organization in diagnosis and treatment that comply with diagnostic and treatment practices;
(2) Medical personnel have reasonably fulfilled their diagnostic and treatment obligations in an emergency, including, inter alia, the resuscitation of a patient who is approaching death; or
(3) Difficulties in diagnosis and treatment given the limitation of prevailing medical standards.
In the circumstance specified in Subparagraph (1) of the preceding paragraph, if the medical organization and its medical personnel are also at fault, the medical organization shall bear the corresponding compensation liability. Article 61 Medical organizations and their medical personnel shall fill in and ensure the safekeeping of inpatient records, physicians’ order sheets, examination reports, surgery and anesthesia records, pathological information, nursing records, medical fees and other medical records in accordance with regulations.
Medical organizations shall accede to the requests of a patient to access and duplicate the medical records specified in the preceding paragraph. Article 62 Medical organizations and their medical personnel shall ensure the privacy and confidentiality of patients. Medical organizations and their medical personnel shall bear tort liability if they disclose a patient’s private matters or medical records without the patient’s consent and cause damage to the patient. Article 63 Medical organizations and their medical personnel shall not carry out unnecessary check-ups in violation of diagnostic and treatment practices. Article 64 The legitimate rights and interests of medical organizations and their medical personnel are protected by law. Anyone who interfers in medical administration and hinders the work or lives of medical personnel shall bear legal liability in accordance with the law. Chapter VIII Environmental Pollution Liability Article 65 For damages caused by pollution of the environment, the polluter shall bear tort liability. Article 66 For disputes arising from pollution of the environment, the polluter shall bear the burden of proving non-liability or diminished liability in accordance with the provisions of the law and the non-existence of a causal relationship between their actions and the damage. Article 67 If the environment is polluted by two or more persons, the degree of liability shall be determined by factors including, inter alia, the type of pollutants and the quantity emitted. Article 68 For damages caused by environmental pollution through the wrongdoing of a third party, the infringed may seek compensation from the polluter and from the said third party. After making compensation, the said polluter shall be entitled to seek reimbursement from the said third party. Chapter IX High Risk Liability Article 69 A person who causes damage to others by engaging in high-risk work shall bear tort liability. Article 70 If damage is inflicted on others from the occurrence of a nuclear accident at a civilian nuclear facility, the operator of the said facility shall bear tort liability unless he can prove that the damage was caused by circumstances such as war or that it was intentionally caused by the victim. Article 71 If a civilian aircraft causes damage to others, the operator of the said aircraft shall bear tort liability unless he can prove that the damage was intentionally caused by the victim. Article 72 If damage to others arises from the possession or use of high risk materials, including, inter alia, flammable, explosive, poisonous or radioactive materials, the person using or possessing such materials shall bear tort liability unless they can prove that the damage was caused by the intentional action of the victim or by force majeure. If the infringed is grossly negligent with respect to the occurrence of the damage, the liability of the said person using or possessing the said materials may be diminished. Article 73 If damage to others arises from operations conducted high above the ground, those involving high pressure or high voltage or underground excavation activities or the use of high-speed rail transport, the operator shall bear tort liability unless they can prove that the damage was caused by the intentional action of the victim or by force majeure. If the infringed is negligent with respect to the occurrence of the damage, the liability of the said operator may be diminished. Article 74 If damage to others arises from the loss or abandonment of a high-risk object, the owner of the said object shall bear tort liability. If the said object has been handed to a third party by the owner for management, the manager shall bear tort liability. If the owner is at fault, they shall bear joint and several liability with the manager. Article 75 If damage to others arises from the illegal possession of highly dangerous objects, the illegal possessor shall bear tort liability. If the owner or manager fails to prove that he has exercised a high duty of care in preventing the illegal possession, he shall bear joint and several liability with the illegal possessor. Article 76 If damage arises from unauthorized entry into a high-risk activity area or a storage area for high-risk materials, the liability of the manager may be diminished or no liability shall be borne if they have taken safety precautions and fulfilled their obligation of providing warnings. Article 77 If there is a compensation limit in accordance with the provisions of the law for bearing high-risk liability, the provisions of the law shall prevail. Chapter X Liability for Damage Caused by Domesticated Animals Article 78 If damage to others is caused by a domesticated animal, the keeper or manager shall bear tort liability. His liability may be diminished or no liability shall be borne if it can be proven that the damage was caused by an intentional act or gross negligence on the part of the infringed. Article 79 If damage to others is caused by a violation of management regulations in which animal safety measures are not adopted, the keeper or manager shall bear tort liability. Article 80 If damage to others is caused by dangerous animals such as violent dogs whose rearing is banned, the keeper or manager shall bear tort liability. Article 81 If damage to others is caused by zoo animals, the zoo shall bear tort liability unless it can prove that it has fulfilled its management responsibilities. Article 82 If damage to others is caused by abandoned or escaped animals during the period of abandonment or escape, the original keeper or manager shall bear tort liability. Article 83 If damage to others is caused by an animal through the wrongdoing of a third party, the infringed may seek compensation from the keeper or manager of the said animal or from the said third party. The said keeper or manager shall be entitled to seek reimbursement from the said third party after compensation. Article 84 Animals shall be kept in compliance with the law, with respect for social ethics and shall not encroach on the lives of others. Chapter XI Object Damage Liability Article 85 For damages to others arising from falling buildings, structures or other facilities, or objects placed on or suspended from the same, the owner, manager or user shall bear tort liability if he is unable to prove that they are not at fault.
The said owner, manager or user shall be entitled to claim reimbursement from other liable parties, if any, after compensation. Article 86 The undertaking entity and construction entity shall be jointly and severally liable for damage to others arising from the collapse of buildings, structures or other facilities. The said entities shall be entitled to claim reimbursement from other liable parties, if any, after compensation.
For damage to others arising from the collapse of buildings, structures or other facilities which are caused by other liable parties, such other parties shall bear tort liability. Article 87 If damage to others is caused by objects thrown from buildings or by objects that have fallen from buildings and the specific tortfeasor cannot be determined, users of the building that are likely tortfeasors shall pay compensation unless they can prove that they are not the tortfeasor. Article 88 If damage to others is caused by the collapse of stacked objects, the person who stacked the objects shall bear tort liability if he is unable to prove that he is not at fault. Article 89 If damage to others is caused by objects that are stacked, dumped or scattered on public roads and are obstructing passage, the relevant entity or individual shall bear tort liability. Article 90 If damage to others is caused by broken trees, the owner or manager of the said trees shall bear tort liability if he is unable to prove that they are not at fault. Article 91 If damage to others is caused by, inter alia, trenching in public places or on roads, or the repair or installation of underground facilities, without setting up clear signs or taking safety precautions, the person undertaking the said works shall bear tort liability.
If damage is caused by underground facilities including, inter alias, manholes, the manager shall bear tort liability if he is unable to prove that they have fulfilled their management responsibilities. Chapter XII Supplementary Provisions Article 92 This Law shall go into effect as of July 1, 2010.