Jeremy Daum of the Yale China Law Center has provided an excellent "walk through" of China's tort law - specifically the now five year old tort section of the Civil Code.
China’s top court recently released an interpretation on applying the torts section of China’s Civil Code. While the interpretation addresses several types of torts, two main themes emerge throughout the interpretation.
Guardianship/Parenthood: A recent legal trend has been to emphasize that the obligations of guardians are enduring, and that they retain responsibility for a child’s wellbeing and actions even if they are not directly caring for the child themselves. The interpretation discusses in what situations and to what extent others bear responsibility for torts committed by wards.
Allocation of damages: China’s civil code provides for proportional liability and joint and several liability where the acts of multiple persons cause harm..
Proportional liability (安分责任） means that the various parties at fault are each responsible only for the portion of the harm they caused. The injured party may seek compensation from any or all of these parties, but each only needs to pay for the portion of harm it caused. This proportion can either be determined at court or, where it cannot be determined, each contributing party will be responsible for an equal share.
Joint and Several Liability （连带责任）means that the injured party can recover in full from ANY of the parties at fault; and that the party giving compensation may then seek indemnification from the other parties contributing to the harm. This allows the injured plaintiff to more easily get compensation, but can be unfair to a wealthy defendant who contributed little to causing the harm, but is still liable for the full damages, while other, more at fault parties lack the resources to indemnify them.
Supplemental liability (补充责任）means that a party has responsibility for paying any remaining damages after another party first pays compensation as much as they can. Supplemental liability requires that the plaintiff first seek enforcement against a certain other party.
The situation most often addressed in the Interpretation is somewhat different than all of these, and relates to one party bearing full responsibility, while others bear responsibility for compensating only a portion of the harm. For example, if a labor staffing service dispatches a worker to a placement, and that employee causes harm to a third party, the law is clear that the placement bears full responsibility for 100% of the harm. At the same time, the staffing service may bear some liability (say 20%), if it negligently sent a poorly trained worker, resulting in the harm.
The Interpretation clarifies that in such a situation, the injured party can still sue whoever they like, but the total compensation received cannot equal more than 100% of the injury. So they cannot collect the 100% from the placement unit and 20% from the staffing service. The staffing service is not required to compensate the full harm, but if it agrees to pay more than the 20% it is liable for, it may seek indemnification from the placement for the excess portion.
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