Tort Law in China
This is to introduce the basics of the tort law in China.
The law of torts in China is statutory law which is mainly covered under the Civil Code, the Product Quality Law, the Consumers’ Rights Protection Law, the Food Safety Law, the Traffic Safety Law, and other special laws that embody tort provisions. The tort law in China, with a goal of protecting people’s freedom and safety, has greatly developed over the years in that there are more detailed provisions governing tortious acts as the society develops much faster in a complicated era.
Tort liability is customarily divided into intentional, negligent, and strict liability torts. For example, personal attack is intentional tort, medical malpractice is a typical tort by negligence, while for strict liability, producers and sellers who shall bear strict liability for the products they manufacture or sell is a good example. Central and most important is liability for negligent harm. The elements of this liability are:
(1) a party conducts an act/omission; (2) the act/omission harms another party’s civil rights, such as person or property; (3) there is damage, personal injury or property loss, suffered by the victim; and (4) there is causation between the act/omission and the damage. A victim has the burden of proof for these elements to claim compensation from the tortfeasor.
In the course of time, various justifications come to be admitted as specific defenses and one can be exempted from tort liability under such circumstances, which include force majeure, self-defense, necessity, voluntary assumption of risk, defendant’s fault and other justifiable acts/omissions that excuse violations of another party’s rights.
The Chinese tort law aims to compensate the actual loss of the victims and to prevent further torts, rather than to punish the tortfeasors. So relieves such as ceasing the tortious act, removing the obstacle, eliminating the danger, making an apology, and/or paying a pecuniary amount to compensate the actual loss of the victim are awarded case by case as ways of bearing tort liability.
One question you might ask is whether there are punitive damages awarded under the Chinese law. The answer is yes, but only against tortfeasors who conduct intentional tortious acts as set out in statutory provisions. And the legal provisions have placed caps on the amount of punitive damages: for example, in a medicine product liability case, the punitive damages are capped at ten times of the price of the defective medicine or three times of the loss sustained by the victim, whichever is greater.
In addition, damages for mental distress are possibly awarded to victims who suffer serious emotional distress from personal injury and from loss of property that bears special meanings but is damaged intentionally or by negligence.
When tort liability is held in a case, damages are awarded in lump sum once-and-for-all, not by periodic payments subject to variation. So it’s better to file a tort case seeking damages when the damage and loss are certain, while a plaintiff of a tort case seeking immediate effect can surely file the case without any delay.
That concludes this brief introduction of the tort law in China. If you have any questions, please don’t hesitate to email me.
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