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Tort Law in China – China’s New Tort Law

The Tort Liability Law of the People’s Republic of China (“Tort Law” or “Law”) was adopted at the 12th session of the Standing Committee of the Eleventh National People’s Congress on 26 December 2009, and shall come into force on 1 July 2010.

Legislative Background and Significance

China is enacting the Civil Code. China’s Civil Code is not completed once, but is developed step by step. The Tort Liability Law is another most important law in the field of civil law in China after the Contract Law and the Real Right Law. Its birth marks that the main part of the Civil Code of China has been completed.

As known, the establishment and improvement of Tort Law is to fully guarantee the lawful rights and interests including personal rights and property rights of civil subjects, and to further perfect the basic rules of market economy. Development of the market economy needs to comprehensively confirm the property right, so it is urgent to need corresponding tort law to provide more protection for property rights. We can say that tort law is a law protecting the rights and interests, which gives a full expression to the value of rule of law and the spirit of the times. The basic connotation of the rule of law should be limitation of public rights and security of private rights. For the protection of private rights, it will largely depend on the tort law.

Framework of the Law

The Tort Liability Law generally stipulates the liability composition, methods of assuming liability, the circumstances to waive or mitigate liability, and liability subjects. It then respectively lists 8 special tort liabilities based on the above general principles.

How to assume the tort liability is the core of the tort liability law. According to the Law, one who is at fault for infringement upon a civil right or interest of another person shall be subject to the tort liability ; one who is at fault as construed according to legal provisions and cannot prove otherwise shall be subject to the tort liability ; one who shall assume the tort liability for infringing upon a civil right or interest of another person, whether at fault or not, as provided for by law, shall be subject to such legal provisions . Therefore, the tort liability consists of three necessary elements: 1) infringement; 2) damage; and 3) causality between infringement and damage. The fault is not necessary – the subject has to assume tort liabilities even if it is not at fault under the situation of special torts listed in the Law.