- First comprehensive tort law adopted by China
- Covers a broad range of activities including medical malpractice, personal injury and liability for environmental damages
- Effective July 1, 2010
In December 2009 the PRC government adopted the Tort Law, which outlines the standards for tort liability and mitigating factors, product liability standards, liability for automobile accidents (Articles 48-53), liability for medical malpractice (Articles 54-64), liability for environmental damage (Articles 65-68), liability for hazardous products and activities (Articles 69-77), liability caused by persons who raise animals (Articles 78-84), and liability for damages caused by the collapse of structures or buildings (Articles 85-91). The Tort Law also addresses liability for injuries as a result of the acts or omissions of educational institutions (Articles 38-40), liability for operators of public accommodations and facilities such as hotels, malls and banks (Article 37), liability for defective products (Articles 41-47), liability for operators of civil aircraft (Article 71), liability for nuclear facilities (Article 70), and liability for zoo operators (Article 81).
The Tort Law, which goes into effect on July 1, 2010, sets forth standards for the determination of tort damages including compensation for emotional distress and actual damages (Articles 16-25). In addition to the provision of damages, the Tort Law provides that a tortfeasor may be ordered to take specific steps to remedy any actions in violation of the rights of another person such as to stop acts of infringement, remove any unlawful obstacle, eliminate a danger, return property, restore property to its original condition, apologize or take other remedial actions. (Article 15).
The Tort Law generally defines concepts addressing joint and several liability of multiple tortfeasors (Articles 8-14). It also addresses the issue of comparative or contributory fault whereby the tortfeasor and the victim share their respective losses. (Article 24).
The Tort Law does not mention business-related torts such as interference with contracts, interference with business relationships, interference with prospective business relationships, fraud/misrepresentation or unfair competition. Though some of these principles are generally mentioned in other laws (such as the Contract Law, Unfair Competition Law and Anti-Monopoly Law), they are not defined as compensable torts. The same applies to privacy-related issues and claims such as invasion of privacy and defamation, although the China Supreme People’s Court’s interpretation of the General Principle of Civil Law provides that defamation is a compensable tort.
There are no clear references to the defenses of “consent” or “privilege.” The Tort Law makes no reference to more sensitive torts that might be committed by the police or government officials such as false imprisonment, malicious prosecution or abuse of process.
The Tort Law also has no provision concerning the statute of limitations for filing judicial complaints. However, the General Principle of Civil Law provides the statute of limitations that applies for all claim, torts or contractual, which is generally two years, but for limited specific claims, such as personal injury and certain product liability claims, the statute of limitations is just one year. Most jurisdictions will limit tort claims to one year given that tort claims are more difficult to bring after a year.
Article 71 of the Tort Law concerning aircraft-related accidents mentions only the liability of the operator and not the manufacturer of the aircraft, repair/maintenance facilities or other party that may be liable or a contributing cause of the accident. Article 70 addressing nuclear facilities also makes no mention of liability for equipment suppliers. However, manufacturers, repair/maintenance facilities and equipment suppliers would most likely be liable under the Product Liability Law or Consumer Protection Law. There are several references to what appears to be a defense based upon performing “management duties.” Article 81 (zoos) and Article 38/39 (schools) appear to provide a defense that exonerates a wrongdoer if it meets some undefined standards for performing “management duties” that might be unreasonable or unsafe.
The Tort Law lacks definitions of key terms used or alluded to throughout the Tort Law such as negligence, gross negligence, intentional acts, fraud, misrepresentation, reasonable care, trespass to land, trespass to chattel (property), assault, battery, consent, informed consent, privilege, capacity and lack thereof, and causation. However, the lack of specificity is common in most PRC laws. The only definition is in Article 2, which defines “civil rights and interests.” Liability is based upon an infringement of a person’s civil rights, but it is unclear as to the level of culpability – namely, negligence, gross negligence or intentional acts. For example, Article 22 addresses emotional distress but does not distinguish between negligent (unintentional) or intentional infliction of emotional distress. Intentional torts should require an aggravated level of culpability.
While many of the causes of action (e.g., medical malpractice and product liability) are covered under other laws and regulations, having a basic tort law will support the development of the legal system. Implementing regulations may help to further define the general concepts addressed in the Tort Law.
See the Tort Liability Law of the People’s Republic of China, promulgated by the 12th Session of the Standing Committee of the 11th National People’s Congress on December 26, 2009, and effective on July 1, 2010. For a bilingual version of the Tort Law, click here.