What Is Unintentional Tort?

Infringement refers to an illegal act that infringes on the personal property or intellectual property rights of another person and should bear civil liability according to law. After the tort occurs, a specific relationship of civil rights and obligations arises between the victim and the victim, that is, the victim has the right to claim the infringer to compensate for the loss. ^[1]

Tort

The perpetrator infringed the person, property, and other legal rights and interests due to his fault, and should bear

Both common law and civil law countries legislation (jurisprudence) have provisions on tort law.

The dispute over the above elements. Mainly concentrated on the following factors, namely: fault, wrongdoing, damage to facts

There are two types of legislation on the composition of torts: one is the method adopted by Roman law and Anglo-American law countries to separately specify the requirements and effects for each individual type of tort, and the other is like the French National Law No. 1382 As mentioned above, the general provisions on the elements and effects of infringement (the burden of compensation for the damage caused by faute). From the perspective of Chinese scholars, they are generally enthusiastic about the latter, that is, adopting a general abstract definition . According to the former, it seems possible to draw such a conclusion: it is impossible to give a unified concept of tort; according to the latter, it seems difficult to reach a unified understanding. Where is the way out? This article believes that torts, as a type of social phenomenon, must have their common characteristics. As long as we summarize their common things from each specific specific tort, it is still possible to give a more scientific concept of torts.

Civil liability for damage caused by public officials of state organs

The damages caused by public officials of state organs to others in performing their duties shall be borne by the state organs only if they are prescribed by law and under the conditions of improper performance of their duties. If a public official of a state organ deliberately causes harm to another person by using his power, the public official shall bear civil liability. Public officials of state organs did not cause damage to others in the performance of their duties, and he also assumed civil liability.

Civil liability for torts in employment activities or relationships

Engaging in employment activities refers to engaging in production and operation activities or other labor activities within the scope authorized or instructed by the employer. An employee's behavior is beyond the scope of authorization, but the manifestation of the employee is the performance of a job or has an internal connection with the performance of the job, which shall be deemed as engaging in employment activities. According to Article 9 of the Interpretation of Compensation for Personal Injury, the employer shall be liable for damage caused by an employee in the course of employment; if the employee caused damage due to intentional or gross negligence, he shall be jointly and severally liable with the employer. Where the employer bears joint and several liability, it may seek compensation from the employee.

Civil liability for torts in helper activities

If a help worker who provides labor services to others without compensation causes damage to others during the work, the help worker shall bear civil liability for compensation. Workers who are explicitly refused to help shall not be liable for compensation.

Civil liability for damage caused by product defects

If the property or personal damage of another person is caused by unqualified product quality, the product manufacturer or seller shall bear civil liability in accordance with the law. If the transporter or warehouse is responsible for this, the product manufacturer or seller has the right to claim compensation for the loss.

There are three reasons for exemption from product producers:

(1) The product has not been put into circulation;

(2) When the product is put into circulation, the defect causing damage does not exist yet;

(3) The level of science and technology at the time the product is put into circulation has not been found to be defective. At the same time, the law stipulates that producers and sellers are not liable for damages caused by the victim's intentional damage. If damage is caused due to the negligence of the victim, the compensation liability of the producer or seller can be reduced.

Civil liability for damage caused by high-risk operations

Those engaged in high altitude, high pressure, flammable, explosive, highly toxic, radioactive, high-speed transportation and other operations that cause high risks to the surrounding environment and cause damage to others shall bear civil liability; if it can be proved that the damage was intentionally caused by the victim, No civil liability.

Civil liability for damage caused by road traffic accidents

In the event of a motor vehicle traffic accident resulting in personal injury or death, or property damage, the insurance company shall compensate within the limits of the compulsory third party liability insurance liability of the motor vehicle.

If it exceeds the liability limit, it shall be liable for compensation in the following ways:

(1) In the event of a traffic accident between motor vehicles, the party responsible for the fault shall bear the responsibility; if both parties are at fault, the responsibility shall be shared in proportion to their respective faults.

(2) Motor vehicle and non-motor vehicle

Unilateral implementation

The tort occurs based on the intention of the parties, and the civil legal consequences caused by the tort are not what the parties expected, so the tort is a factual act.

Civil violation

The illegality of the torts violates the provisions of the law in a timely manner and is not allowed by the law. The essence is to violate the obligations stipulated by the law. So-called legal obligations. "

The extension of tort refers to the scope covered by the legal concept of tort.

In Roman law, the full extension of private prisoners includes private and quasi-private. In French law, torts are highly summarized. The complete extension includes torts and quasi-infringements. The former is a tort responsible for one's own behavior, and the latter is a responsible behavior for another's behavior or under his control Infringement responsible for damage caused by objects. Since German law, the contents of the concepts of quasi-private offenders and quasi-infringement have been collectively referred to as special torts. More importantly, from the perspective of illegality, German tort law defines torts as torts that violate legal obligations, torts that violate laws that protect others, and torts that cause damage to people by intentionally violating good customs. Anglo-American law does not distinguish the extension of torts from these aspects, but adopts the method of defining the types of torts to define the scope of torts. German law depends on the protected interests and constitutes subjective elements. The torts in Anglo-American law have different constitutive elements, remedies, and defenses according to the interests they infringe, and the extension of the torts is determined accordingly. .

Articles 16, 19, and 22 of China's Tort Liability Law limit the extension of the concept of tort in China, that is, China's tort includes the following three types:

(1) Infringements on the right to life, health and physical rights stipulated in Article 16;

(2) Infringements of property rights infringed by Article 19, including infringements of property rights, creditors' rights, and intellectual property rights;

(3) The infringements infringing other personal rights stipulated in Article 22 include infringements on the right to name (name right), right to portrait, reputation, privacy, honor, and identity. ^[2]

1. The infringement violates the legal obligation, and the breach violates the agreed obligation;

2. The infringement infringes the absolute right, and the infringement infringes the relative right;

3. The legal liability for tort includes property liability and non-property liability. Liability for breach is limited to property liability. ^[2]

I. General and Special Torts

Separate infringement and joint infringement

3. Active and Negative Infringement

The criteria for distinguishing between general infringements and special infringements should be grasped, the criteria for distinction between infringements and inaction infringements should be grasped, and the situation of joint infringements should be grasped in particular:

(1) There is a common will between the perpetrators;

(2) Although the perpetrators have no common intention to communicate, the damage caused by their actions is indivisible;

(3) The instigator and the implementer jointly cause damage to others. Joint infringement requires that the infringer is at fault, and unintentional acts do not constitute joint infringement. Attention should be paid to distinguishing joint infringement from individual infringement: joint infringers bear joint and several liability; individual infringement bears its own responsibility. ^[2]

I. Force Majeure

Force majeure refers to an objective situation that cannot be foreseen, unavoidable and insurmountable.

Victim's fault

The fault of the victim means that the victim is at fault for the occurrence of the tort or the expansion of the consequences of the tort damage.

Third, legitimate defense

Justifiable defense refers to acts that do not exceed the necessary limit for the illegal infringement of the property, personal or other legitimate rights and interests of the person or others in order to protect the public interest.

Fourth, emergency hedging

Emergency hedging refers to acts that, in the public interest, protect the property, person, or other legitimate rights and interests of the person or others from the dangers that are occurring, and must be done to cause minor harm to others.

V. Consent of the victim

The consent of the victim refers to the clear intention of the victim to voluntarily bear the consequences of some damage before the tort or the consequences of the damage occur.

Imputation Principles for Torts

(One)

Components: Similarity and Contact

The classification of intellectual property rights mainly includes copyright, patent rights and trademark rights. In Chinese law, there is no compulsory registration of intellectual property rights other than trademark rights.

Similarity refers to the suspicion that there are similarities with the infringed person, plagiarism, and the use of other people's trademarks in the work, patent or trademark.

Disjunctive means that there is clear evidence that the infringer has contacted the work, patent or trademark of the infringer.

Without the above two points, the infringement of intellectual property rights does not constitute. ^[2]