Tort Law in China

Chinese tort law was established within Chinese civil law when China adopted the European civil law model at the end of the Qing dynasty. This new Chinese tort law established a dual-liability basis which includes fault liability and liability without fault. Because liability without fault does not expressly point out the liability basis, the author explores the role of strict liability and vicarious liability from a comparative approach. With respect to fault and strict liability, the author further explores liability requirements such as fault, damage, causation and the justification of strict liability. Considering the developing international trends in tort law, Chinese tort law should recognize vicarious liability as an independent liability type. In contrast to the corresponding rules in the General Principles of Civil Law (GPCL), the Chinese Tort Liability Law (CTL) has made significant progress as regards drafting techniques. Keywords:Chinese Tort Liability Law (CTL); dual-liability basis; fault liability; General Principles of Civil Law (GPCL); strict liability; vicarious liability

China is the most populous nation, the largest developing country with relatively high levels of poverty, the fastest-growing economy, and one of the world’s most polluted countries. Bearing this in mind, the Chinese central leadership is keen to address environmental and developmental concerns concomitantly and strike a balance between environmental protection and economic development. One way that this can be achieved, in the author’s view, is through the development of green technology.
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\nInstead of repeating what has been said in the existing literature, this thesis attempts to approach the issue of green technology from a new perspective of law and institutional design, and seeks to stimulate green technological change through the development of a legal system that engages environmental law and patent law in a concerted effort to incentivize the innovation and dissemination of green technology to the greatest extent. This thesis argues that by improving a synergy between the Chinese environmental law and patent law, especially by using the Chinese patent law as an environmental instrument, the innovation and diffusion of green technology can be better promoted. This in turn would contribute to China’s environmental improvement without necessarily impeding economic growth or technological progress.
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\nSpecifically, this thesis puts forward three main ways in which patent law can be used as an environmental tool, i.e., the creation of a rationale governing both environmental law and patent law in a nation’s legal regime for including environmental goals in patent law, environmental law’s adoption of patent system as an environmental regulatory tool, and the “greening” of patent law. This so-called“three-step approach”, in conjunction with the proposed specific provisions, measures or mechanisms developed under each of the three approaches, will constitute a theoretically effective legal framework and can be used as criteria for assessing the Chinese law’s effectiveness in synergizing environmental law with patent law and using patent law as an environmental instrument. A total of 28 aspects and sub-aspects of the Chinese law have been examined against the proposed criteria, with a total of 31 points awarded. A notable gap exists between the Chinese law and the proposed theoretically effective law because had all the aspects and sub-aspects of the Chinese law fully met the criteria, the total score would have been 84 points other than 31 points. It is worth noting that such an assessment of the Chinese law is not conducted alone, but on the basis of a comparison with the counterparts of the US and European laws, which makes the evaluation of the Chinese law more meaningful and accurate and helps to identify lessons from the experience of the US and EU. Based on such vertical and horizontal comparisons, this thesis raises specific proposals for China’s legislative reform, with a view to synergizing the Chinese environmental law with patent law and using the Chinese patent law as an environmental instrument.

Compared to Hindu and African law, the study of Chinese law faces a much less hostile research environment. While China's size, volatility and importance remain a challenge, the codification of imperial Chinese laws impressed most Western observers and left little room for doubt that the ancient Chinese had law. This also provided sufficient reason for comparative lawyers to include Chinese law among the legal families, though its precise place in global taxonomies remains debated. Since the existence of law in China has never been challenged, the present chapter only briefly considers different scholarly representations. It focuses on key aspects of Chinese laws, highlighting the plurality of legal systems under the collective term ‘Chinese law’. The core element is visibly the imperial Chinese system of statutory laws, a manifestation of legal positivism which extended, with numerous modifications, from 221 BC until 1911. Equally important in social reality, however, are various uncodified systems of Chinese cultural norms and values, often subsumed (and thus not clearly enough distinguished as natural law and custom) under the label of morality or ‘Confucian ethics’. These Chinese postulates (Chiba, 1989: 180) are of immense relevance for understanding the social reality of ancient and modern Chinese law. They point to inherent plurality-consciousness also within Chinese law. At first sight, the discourse on Chinese law appears to give far less importance to ‘custom’ than to the Codes or the philosophies of Confucian ethics, suggesting that this legal system is incomparably unique in its reliance on philosophy and state-made codes.

The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability. The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability.

This research aims to examine the existing justice system in one of the Muslim countries in the world, namely Kuwait, which has undergone transformation due to the influence of the western legal system. This research is library research, namely research carried out by examining various related research and literature. The data source in this research is secondary data. The results of this research are that the grip of the Western legal system has changed the structure of the legal system in Kuwait. This can be seen in the legal system in Kuwait which has undergone a transformation, initially only influenced by Islam but currently also influenced by foreign legal systems, such as France, England and Egypt. This is due to the background of the Kuwaiti state which was once under the supervision of a foreign country such as England. The legal system in Kuwait has currently undergone a transformation, in the form of a combination of British common law, French civil law, Egyptian civil law and Islamic law (Shariah) by implementing the Sharia Law for its civil law. This causes the courts in Kuwait to be divided into three levels: the Court of First Instance, the Court of Appeal and the Court of Cassation. Within each of the three levels of courts, special boards or tribunals are created to adjudicate civil, criminal, commercial or financial, administrative, and personal status matters, and the courts may establish additional special councils or tribunals as necessary.

Mauritian civil law is strongly influenced by French civil law, for historical reasons. Civil liability, tort and contractual law, is regulated in an almost same manner in the two countries. However, as French civil law is only a persuasive authority in Mauritius, the position of the French Court of Cassation is not always followed by the Mauritian Supreme Court. Moreover, even when the legal solutions in the two countries are the same, differences can exist between the contractual and tort liabilities of principals for the acts of their agents. This paper aims at critically analyzing the similarities and differences in the tort and contractual liabilities of principals for the acts of their agents in France and Mauritius.

Effective implementation and enforcement of laws and regulations will to a large extent determine how successful the Belt and Road Initiative (BRI) turns out to be. Mutual respect and trust between trading partners is crucial. This chapter explores how the various legal and regulatory systems can be developed to encourage and enhance trustworthy behavior. The countries involved in Belt and Road (BR) are very varied in their legal and regulatory approaches, ranging from those which rely heavily on religious teachings to those with common law or civil law traditions. Each type of law takes a different approach to matters which are relevant to trustworthiness. Achieving a sustainable legal and regulatory framework for BR requires, as a matter of urgency, that attention is given to how the various legal systems interact. BR follows a long tradition whereby the Silk Road facilitated interchange between the great civilisations of China, Mesopotamia, Persia, India and Rome, and later Europe. Achieving this will require that trust between nations is established, not only at the highest levels of government, but also between individuals, companies and communities. Lack of trustworthy behaviour can adversely affect relations between governments (for example, between Greece and Europe), between companies (leading to numerous defaults and corporate failures, including those which accompanied the Global Financial Crisis (GFC)) and between individuals. In what follows, we explore the various methods whereby shared values (or at least a set of shared beliefs) can be developed, in order to ensure that the behaviour of those in authority is trustworthy. This varies from country to country, from sector to sector, and under different legal traditions. In doing this we draw on work carried out at Oxford and elsewhere on how trustworthy behaviour can be encouraged. We argue that it is the role of the Law, including in bilateral and multilateral trading arrangements, to ensure that relationships between market players and stakeholders are as fair and transparent as possible, through mechanisms that influence norms and hold those who behave in untrustworthy ways to account. Chinese law and practice is contrasted with those in other jurisdiction in order to explore the relative merits of each. Sustainability of the BR legal system requires consensus and long-term sustainable relationships.

The reformed choice of law in tort rules contained in the Private International Law (Miscellaneous Provisions) Act 1995 have proved a source of great controversy. This piece attempts to show that there are wider concerns fuelled by the Act. It seeks to demonstrate that one can not reform one area of the Conflict of Laws (such as choice of law in tort) in isolation from other areas (such as jurisdiction in tortious matters and choice of law in contract) and to illustrate the unsatisfactory state that the statutory reforms have had on these other areas. The analysis of the problems generated by the Act may be used as a model for a far more fundamental proposition: namely that the tendency to regard choice of law and jurisdiction as separate areas throughout the Conflict of Laws, rather than as combining to form a coherent law of international litigation, is a critical shortcoming of the study of the subject.

Chinese officials accused of forcing abortions in Shandong

This paper analyzes the institution of suretyship in the German and Polish legal systems. It highlights both differences and similarities of the main characteristics, such as conditions to validity, scope of liability, defences available to the surety and the recourse by the surety in case of payment. The analysis is based not only on the relevant legal provisions, jurisprudence and doctrine, but also on their application in the business practice of the two countries.The comparative overview of the suretyship permits the conclusion that both legal systems regulate the principal features of this institution rather similarly. However, there are also a number of significant differences. Notably, German jurisprudence and doctrine appear to adopt a more flexible approach to this institution than the prevailing position in Polish law. On the other hand, the liability of the surety is more rigorously shaped under Polish law. Whereas German law and practice seem in many respects to be more protective of the surety than Polish law and jurisprudence, the latter provides the surety with far less possibilities to be released from the assumed liability.

Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law

This book provides a description of the German law of unjustified enrichment. It explains how German law generally allows restitution for transfers made without legal ground (rather than on the basis of individual unjust factors), an approach which the late Peter Birks proposed for English law to adopt, and which the House of Lords was careful not to rule out for the future in Deutsche Morgan Grenfell v Inland Revenue. Part I explains the workings of German unjustified enrichment law within the particular context of German contract, tort, and property law. It shows how the German general unjust enrichment clause is controlled by limiting its scope to intentional transfers, and complemented by specific grounds of unjust enrichment. This part also explains defences against and measure of enrichment claims. Part II places German law in the comparative context of three different fundamental approaches towards unjustified enrichment, shows some unexpected similarities between English and German law, and discusses whether English law could and should adopt the German approach. The book gives equal prominence to structural issues and legal doctrine on the one hand, and practical application of the law on the other. It provides leading German cases and relevant statutory provisions in English translation.

Globalization of the economy, public affairs, human rights, environmental issues and laws indicate the developing tendency of human beings and society, and this has a great influence on the third reform of Chinese law in many aspects. Upon its entrance into the WTO, China carried out a large-scale clarification and amendment of its laws and regulations, and incorporated itself into the global governance structure. This marks the beginning of the third legal reform in the country. This reform includes the reform of the political and legal system, restructuring of the legal system, and evolution of the real meaning of law. In the future development of Chinese law, the fundamental nature of modern, global and human civilization, and the legal profession will penetrate much more into the whole Chinese law and its operation.

The emergence of crypto assets, a novel category of assets, has posed significant challenges to property law across various legal systems. The integration of these intangible assets into property law frameworks proves to be complicated for many civil law jurisdictions, which tend to adhere to dogmatic approaches. In contrast, Anglo-American common law and Chinese civil law systems, despite their divergent origins, have exhibited legally pragmatic responses to intangible property, including crypto assets. By examining the development of their property laws concerning property conceptualization and the treatment of emerging intangible assets, this article explores how the historical foundations of Anglo-American common law in feudal tradition and Chinese civil law in communist ideologies have fostered adaptable and flexible notions of property. This adaptability is argued to be a strength within both the Anglo-American common law and Chinese civil law systems, enabling them to accommodate innovative intangible assets more easily compared to their civilian counterparts.

The cloud storage contract is a form of cloud computing agreement that falls within cloud hosting arrangements. It is distinguished by the nature of storing data on the Internet, whereby servers and technical infrastructure are provided by a cloud service provider. This provider manages and maintains the infrastructure and ensures that the user can access their data at any time and from any location. Like all continuous contracts, a cloud storage contract ends naturally upon the expiry of its agreed term. It may also terminate by mutual agreement of the parties, by judicial decision, or by operation of law. To protect the privacy and confidentiality of the user's data the user being the second party in the contract the agreement must include a clause requiring the service provider to delete all stored data and a commitment not to use or disclose it after the contract ends. In order to safeguard the rights of both parties, especially the weaker party, who is typically the user, numerous legal frameworks have been enacted. This research adopts a comparative approach between Iraqi law and French civil law, with primary emphasis on the Iraqi legal system, to provide a clear legal understanding of the technical concepts and terminology associated with these contracts. The study calls upon the Iraqi legislator to regulate this type of contract in line with developments in other legal systems.