Tort Law of the People's Republic of China

Order of the President of the People's Republic of China No. 21

December 26, 2009

The Tort Law of the People's Republic of China, adopted at the 12th session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on December 26, 2009, is hereby promulgated and shall come into effect on July 1, 2010.

President of the People's Republic of China Hu Jintao

Tort Law of the People's Republic of China

Adopted at the 12th session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on December 26, 2009

Contents
Chapter I General Provisions
Chapter II Constitutive Requirements of Liability and Methods for Assuming Liability
Chapter III Circumstances under which Liability Is Waived or Mitigated
Chapter IV Special Provisions on Liable Parties
Chapter V Product Liability
Chapter VI Automobile Traffic Accident Liability
Chapter VII Medical Malpractice Liability
Chapter VIII Environmental Pollution Liability
Chapter IX High-Risk Operation Liability
Chapter X Liability for Damage Caused by Domesticated Animals
Chapter XI Liability for Damage Caused by Objects
Chapter XII Supplementary Provisions

Chapter I General Provisions

Article 1 This Law is formulated with a view to protecting the legitimate rights and interests of civil parties, determining liability for torts, preventing and penalizing tortious acts, and promoting social harmony and stability.

Article 2 Whoever infringes on the civil rights and interests of others shall be liable for the tortious acts in accordance with this Law.
For the purpose of this Law, "civil rights and interests" shall include personal and property rights and interests such as the right to life, the right to health, rights associated with names, reputational rights, honorary rights, the right to one's image, the right to privacy, the right to marital autonomy, the right to guardianship, ownership, usufruct, security interests, copyrights, patent rights, exclusive rights to use trademarks, discovery rights, equities, right of succession, etc.


Article 3 Parties whose rights are infringed upon shall be entitled to request the infringing parties be held liable for torts.

Article 4 The assumption of administrative or criminal liability by an infringing party for the same act shall not prejudice its assumption of tortious liability in accordance with the law.
Where an infringing party bears tort liability, administrative liability and criminal liability for the same act but has insufficient assets to meet all claims made in relation thereto, it shall first assume the tortious liability.

Article 5 Special provisions, if any, prescribed by other laws on tort liability shall prevail.


Chapter II Constitutive Requirements of Liability and Methods for Assuming Liability

Article 6 Whoever is at fault in infringing upon another party's civil rights and interests shall bear tort liability.
Whoever is presumed to be at fault by law and is unable to prove otherwise shall bear tort liability.


Article 7 Whoever infringes upon another party's civil rights and interests and shall bear tort liability by law regardless of whether it is at fault shall be subject to such provisions.

Article 8 Two or more parties whose joint infringement causes damage to another party shall be jointly and severally liable.


Article 9 Whoever incites or assists another party to carry out tortious conducts shall be jointly and severally liable with the latter party.
Whoever incites or assists a party who lacks or has limited civil capacity to carry out tortious conducts shall bear tort liability. The guardian of the party who lacks or has limited civil capacity shall bear corresponding liability if he/she fails to fulfill the duties as a guardian.


Article 10 Where two or more people engage in a conduct that endangers another person's personal or property safety, and the conduct of one or more people causes damage to that person, if the specific infringing party can be determined, the infringing party shall be liable; otherwise, all persons involved shall be jointly and severally liable.


Article 11 Where two or more people respectively carry out tortious acts that cause the same damage and the tortious acts of each person are capable of causing the entire damage sustained, all persons involved shall be jointly and severally liable.


Article 12 Where two or more people respectively engage in tortious acts that cause the same damage and the extent to which each person is liable can be determined, the infringing parties shall respectively bear the corresponding liability; in the event that it is difficult to determine the extent to which each person is liable, the infringing parties shall be liable to pay an equal amount of compensation.


Article 13 Where the law provides that joint and several liability shall be assumed, a party whose rights are infringed upon shall be entitled to claim liability in whole or in part against all parties jointly and severally liable.


Article 14 The amount of compensation to be paid by the parties jointly and severally liable shall be determined according to the extent of their respective liability; where the extent of their respective liability is difficult to determine, such parties shall be liable to pay an equal amount of compensation.
A party jointly and severally liable who pays compensation of more than the amount for which it is liable shall be entitled to recover from other parties jointly and severally liable.


Article 15 The principal methods by which tort liability shall be borne are:
1. Cessation of infringement;
2. Removal of obstruction;
3. Elimination of danger;
4. Return of property;
5. Restoration to the original state;
6. Compensation for losses;
7. Apology; and
8. Elimination of adverse impacts and restoration of reputation.
The above methods may be applied independently or concurrently.

Article 16 Whoever harms another person and causes bodily injury shall compensate for all reasonable expenses incurred for treatment and recovery such as medical expenses, nursing expenses and transportation expenses, as well as the incomes lost due to absence from work; where the victim suffers from disability, the infringing party shall pay for the fees for daily living assistive devices and disability allowance; where the infringing party's conduct results in death, it shall pay all funeral expenses and death compensation.


Article 17 Where the same tortious act causes more than one person to die, the amount of death compensation payable may be the same.

Article 18 Where a party whose rights are infringed upon dies, his/her immediate relatives shall be entitled to request the infringing party be held liable for tort. Where the party whose rights are infringed upon is an entity which has been divided or merged, the successor thereof shall be entitled to request the infringing party be held liable for tort.
Where the party whose rights are infringed upon dies, the party who has paid reasonable expenses such as medical expenses and funeral expenses shall be entitled to request the infringing party to make compensation, unless the infringing party has already paid such expenses.

Article 19 As regards infringements on another person's property, the property loss shall be calculated according to the market price for the property when the loss is incurred or by other means.

Article 20 Whoever infringes upon the personal rights and interests of another party and thereby causes property losses shall pay compensation for the losses suffered by the party whose rights are infringed upon; where the losses of the party whose rights are infringed upon are difficult to determine but the infringing party has made gains from the infringing acts, the infringing party shall pay compensation according to the gains obtained; where the gains obtained by the infringing party are difficult to determine and the party whose rights are infringed upon and the infringing party are unable to reach an agreement on the amount of compensation through negotiation, following which a lawsuit is filed with a people's court, the people's court shall determine the amount of compensation payable according to actual circumstances.


Article 21 Where a tortious act endangers the personal or property safety of another person, the party whose rights are infringed upon may request that the infringing party assume tort liability such as ceasing infringement, removing obstruction, eliminating danger, etc.

Article 22 Where the infringements upon a party's personal rights and interests cause the party to suffer from serious mental distress, the said party may claim compensation for mental distress.


Article 23 Where a party suffers an injury in seeking to prevent or stop another party's civil rights and interests from being infringed upon, the infringing party shall be liable. Where the infringing party has escaped or is unable to bear liability, and the party whose rights are infringed upon claims compensation, the beneficiary shall pay appropriate compensation.

Article 24 Where neither the victim nor the perpetrator is at fault in the occurrence of damage, they may share the resulting loss according to actual circumstances.

Article 25 After damage occurs, the parties concerned may discuss the method for paying compensation. Where no agreement is reached through negotiation, compensation shall be paid in a lump sum; where lump-sum payment of compensation is genuinely difficult, the compensation may be paid by installment provided a corresponding guarantee is given.

Chapter III Circumstances under which Liability Is Waived or Mitigated

Article 26 The liability of an infringing party may be mitigated to the extent that the party whose rights are infringed upon is also at fault in the damage sustained.


Article 27 Where damage is intentionally caused by a victim, the actor shall not be liable.


Article 28 Where damage is caused by a third party, the third party shall bear tort liability.

Article 29 Unless otherwise prescribed by law, no liability shall arise for damage sustained by any party as a result of force majeure.


Article 30 No party shall be liable for damage caused in reasonable self-defense, provided that where an action taken in self-defense goes beyond what is necessary and causes unnecessary damage, the party acting in self-defense shall bear appropriate liability.

Article 31 Where damage is caused in avoiding danger under emergency, the person who causes the emergency shall be liable for such damage. Where danger is caused by natural reasons, the party who take steps to avoid the danger under emergency shall not be liable or shall be required to pay only a reasonable amount of compensation. The said party shall, however, bear a reasonable degree of liability for any unnecessary damage caused by improper or excessive measures taken.

Chapter IV Special Provisions on Liable Parties

Article 32 Where a person who lacks or has limited civil capacity causes damage to another person, his/her guardian shall bear tort liability. Where the guardian has fulfilled the duties as a guardian, he/she may have the tort liability mitigated.
Compensation for any damage done to another person by the person who lacks or has limited civil capacity shall be payable out of the latter's assets, if any. The shortfall, if any, shall be made good by the guardian.

Article 33 Whoever with full civil capacity shall bear tort liability for damage done to another person as a result of temporary loss of consciousness or control of conducts; where the said party is not at fault, he/she shall, in light of his/her financial conditions, pay reasonable compensation to the victim.
Whoever with full civil capacity shall bear tort liability for damage done to another person as a result of temporary loss of consciousness or control of conducts caused by intoxication or abuse of narcotic or psychoactive drugs.

Article 34 Employers shall bear tortious liability for any injury or damage caused to other people by their employees in the course of their work.
Parties that use dispatched labor shall bear tortious liability for any injury or damage caused to other people by dispatched personnel during the course of their work during the labor dispatch period; the labor dispatching party shall bear corresponding supplementary liability where it is at fault.


Article 35 Where a labor relationship has formed between individuals and the party providing labor causes an injury or damage to another person as a result of his labor services, the party to whom labor is provided shall bear tortious liability. Where the party providing labor causes injury or damage to himself as a result of his labor services, liability shall be borne by both parties in light of their respective degree of fault.


Article 36 Internet users and internet service providers shall bear tortious liability in the event they infringe other people's civil rights and interests through the internet.
Where an internet user engages in tortious conduct through internet services, the injured party shall have the right to inform the internet service provider that it should take necessary action such as by deleting content, screening, breaking links, etc. Where an internet service provider fails to take necessary action after being informed, it shall be jointly and severally liable with the internet user with regard to the additional injury or damage suffered.
Where an internet service provider knows an internet user is infringing other people's civil rights and interests through its internet service but fails to take necessary action, it shall be jointly and severally liable with the internet user.


Article 37 Managers of public places such as hotels, shopping markets, banks, bus stations, entertainment venues and the organizers of mass activities shall bear tortious liability for injury or damage done to other people as a result of their failure to fulfill their duty of care.
Where the injury or damage is caused by a third party, the third party shall bear tortious liability, where the manager or organizer fails to fulfill its duty of care, it shall assume supplementary liability.

Article 38 Where a person without civil capacity suffers a bodily injury while studying or living in a kindergarten, school or any other education institution, the kindergarten, school or education institution shall be liable unless it can prove it has fulfilled its education and management duties.

Article 39 Where a person with limited civil capacity suffers a bodily injury while studying or living in a kindergarten, school or any other education institution, the kindergarten, school or education institution shall be liable in the event it fails to fulfill its education or management duties.

Article 40 Where a person who lacks or has limited civil capacity, while studying or living in a kindergarten, school or any other education institution, suffers a bodily injury caused by a person other than the kindergarten, school or education institution, the infringing party shall bear tortious liability; where the kindergarten, school or education institution fails to fulfill its management duties, it shall bear supplementary liability.

Chapter V Product Liability

Article 41 Producers shall bear tortious liability for damage caused to others by their defective products.

Article 42 Sellers shall bear tortious liability for damage caused to others by defective products where the seller is at fault.
Where the seller is unable to identify either the producer or the supplier of defective products, the seller shall bear tortious liability.

Article 43 For damage caused by defective products, the injured party may seek compensation from either the producer or the seller.
Where the product defect is caused by the producer, the seller may, after paying compensation, claim the same from the producer.
Where the product defect is caused by the seller, the producer may, after paying compensation, claim the same from the seller.

Article 44 Where the product defect is caused by the transporter, the warehouse or another third party, the producer and the seller may, after paying compensation, claim the same from the third party.

Article 45 Where the product defect endangers other people's person or property, the injured party may hold the producer or the seller liable in tort and require that it remove obstacles, eliminate danger, or take other action.

Article 46 Where a product is found to be defective after it is put into circulation, the producer and the seller shall give timely warnings, recall the defective product, or take other remedial measures. If any damage is caused due to the untimeliness or ineffectiveness of remedial measures, the producer and the seller shall bear tortious liability.

Article 47 Where any producer or seller knowingly produces or sells defective products that cause death or serious damage to the health of others, the injured party may claim appropriate punitive damages.


Chapter VI Automobile Traffic Accident Liability

Article 48 For damage caused by motor vehicles in traffic accidents, liability to pay compensation shall be determined in accordance with the relevant provisions of the Law of the People's Republic of China on Road Traffic Safety.


Article 49 Where the owner and user of a motor vehicle are not the same person in circumstances such as a lease, lending, etc., in the event liability for a traffic accident is borne by the person driving the vehicle, such liability may be covered by the insurance company within the compensation limit under the compulsory insurance procured for said vehicle. Any shortfall shall be borne by the user of the vehicle. If the owner of the vehicle contributes to the occurrence of the damage, he shall bear the corresponding liability.


Article 50 Where a motor vehicle is sold and delivered to the buyer or transferred by other means and delivered to the transferee but the name of the owner has not been changed, in the event liability for a traffic accident is borne by the person driving the vehicle, such liability may be covered by the insurance company within the compensation limit under the compulsory insurance procured for said vehicle. Any shortfall shall be borne by the buyer or the transferee.

Article 51 Where an assembled motor vehicle or a motor vehicle that is due to be scrapped is sold or transferred by other means, the transferor and the transferee shall be jointly and severally liable for damage caused by said vehicle in a traffic accident.

Article 52 Where a motor vehicle is stolen, converted or looted, the thief, converter or looter shall be liable for damage caused by said vehicle in a traffic accident. If the insurance company pays rescue costs within the compensation limit under the compulsory insurance procured for said vehicle on behalf of the liable party, it may claim the same from the liable party.


Article 53 Where a motor vehicle driver flees after a traffic accident, if the vehicle is subject to compulsory insurance, compensation shall be covered by the insurance company within the compensation limit under the compulsory insurance procured for said vehicle. If the vehicle is unknown or if the vehicle is not subject to compulsory insurance, the costs paid for rescuing or burying the injured party and other relevant costs shall be paid out of the Social Assistance Fund for Road Traffic Accidents on behalf of the liable party. The administrative organ for the Fund may, after paying compensation, claim the same from the liable party.

Chapter VII Medical Malpractice Liability

Article 54 Where any damage is caused to a patient in the course of medical treatment, if the medical institution and/or any of its medical professionals are/is at fault, the medical institution shall be liable to pay compensation.

Article 55 During the course of medical treatment, medical professionals shall inform patients of their conditions and the medical measures to be taken. If surgery, a special examination, or special treatment is necessary, the medical professional shall promptly explain to the patient the risks of such treatment and the alternative treatments available and shall obtain the patient's written consent. If it is inappropriate to tell the patient of his condition, the medical professional shall explain the same to the patient's close relatives and obtain their written consent.
If any medical professional fails to fulfill the obligations specified in the preceding paragraph, which results in an injury to the patient, the medical institution concerned shall be liable to pay compensation.

Article 56 If the medical professional is unable to obtain consent from the patient or his close relatives in a life-threatening situation, he may administer appropriate medical treatment without receiving consent from the patient or his close relatives provided such treatment is approved by the responsible person or the authorized person for the medical institution.

Article 57 If a medical professional fails to perform his diagnosis and treatment obligations according to current standards, thereby resulting in damage to the patient, the medical institution concerned shall be liable to pay compensation.

Article 58 If any damage is caused to the patient under any of the following circumstances, the medical institution shall be deemed to be at fault:
1. Its medical professionals have violated laws, administrative regulations, rules, or other relevant requirements on diagnostic and treatment practices;
2. Its medical professionals have concealed or refused to provide medical records relating to the dispute; or
3. Its medical professionals have forged, tampered with or destroyed medical records.


Article 59 If any damage is caused to the patient due to defective drugs, infected medical devices or sub-standard blood, the patient may seek compensation from the producer, the blood supplier, or the medical institution. If the patient elects to seek compensation from the medical institution, the medical institution may, after paying compensation, claim the same from the liable producer or blood supplier.

Article 60 If any damage is caused to the patient under any of the following circumstances, the medical institution shall not be liable to pay compensation:
1. The patient or any of his close relatives fails to cooperate with the medical institution in the course of qualified medical treatment;
2. Medical professionals have performed their reasonable obligation to save the patient in a life-threatening situation; or
3. Existing medical standards are not high enough to treat the patient.
For Item 1 of the preceding Paragraph, if the medical institution and its medical professionals are at fault, the medical institution shall bear corresponding liability.


Article 61 Medical institutions and their medical professionals shall complete and properly maintain hospital admission records, doctors' instruction sheets, laboratory test reports, surgical and anesthesia records, pathology data, health care records, medical cost records, and other medical records.
Where a patient requests access to or a copy of any of the medical records specified in the preceding Paragraph, the medical institution shall provide the same.

Article 62 Medical institutions and their medical professionals shall maintain the privacy and confidentiality of their patients and information thereon. Any person who causes damage to a patient through unauthorized disclosure of the patient's private or medical records shall bear tortious liability.

Article 63 No medical institution or medical professional thereof shall carry out unnecessary checks in violation of clinical norms.

Article 64 The legitimate rights and interests of medical institutions and their medical professionals shall be protected by law. Anyone who disturbs the order of medical treatment or hinders the work or life of medical professionals shall bear legal liability according to law.

Chapter VIII Environmental Pollution Liability

Article 65 Where any damage is caused by environmental pollution, the polluter shall bear tortious liability.


Article 66 In the event of a dispute over environmental pollution, the polluter shall bear the burden of proof regarding any exemption from or mitigation of liability and the causal relationship between his conduct and the damage.


Article 67 Where there are two or more polluters, the proportion of damage for which each is liable shall be determined according to the type of pollutant, the volume of emissions, and other factors.


Article 68 Where any damage is caused by environmental pollution attributable to a third party, the injured party may seek compensation from either the polluter or the third party. The polluter may, after paying compensation, claim the same from the third party.


Chapter IX High-Risk Operation Liability

Article 69 Anyone who causes damage to another person by engaging in high-risk operations shall bear tortious liability.

Article 70 Where any damage is caused by a civil nuclear facility, the operator of said civil nuclear facility shall bear tortious liability unless he can prove that the damage was caused by war or that the victim deliberately incurred the damage.

Article 71 Where any damage is caused by a civil aircraft, the operator of said civil aircraft shall bear tortious liability unless he can prove that that the victim deliberately incurred the damage.

Article 72 Where any damage is caused by the possession or use of flammable, explosive, poisonous, radioactive, or other high-risk materials, the person in possession or use thereof shall bear tortious liability unless he can prove that that the victim deliberately incurred the damage or that the damage was caused by a force majeure event. If the injured party is at major fault in the occurrence of the damage, the liability of the person in possession or use of said materials may be mitigated.

Article 73 Where any damage is caused by high-altitude operations, high-pressure operations, underground mining activities or the use of high-speed rail transport, the operator shall bear tortious liability unless he can prove that that the victim deliberately incurred the damage or that the damage was caused by a force majeure event. If the injured party is at major fault in the occurrence of the damage, the liability of the operator may be mitigated.

Article 74 Where any damage is caused by discarding or abandoning high-risk materials, the owner shall bear tortious liability. If the high-risk materials are managed by a custodian authorized by the owner, the custodian shall bear tortious liability. If the owner is at fault, he shall be jointly and severally liable.

Article 75 Where any damage is caused by the unlawful possession of high-risk materials, the party in unlawful possession shall bear tortious liability. If the owner or custodian cannot prove that they exercised due care to prevent others from unlawfully possessing the same, they shall be jointly and severally liable.

Article 76 Where any damage is caused by unauthorized access to high-risk operation areas or storage areas for high-risk materials, if the custodian has taken security measures and fulfilled his obligation to provide warnings, his liability may be mitigated or exempted.


Article 77 If any law provides for a limited amount of compensation regarding high-risk operation liability, such provisions shall apply.

Chapter X Liability for Damage Caused by Domesticated Animals

Article 78 Where any damage is caused by a domesticated animal, the keeper or manager thereof shall bear tortious liability unless he can prove that the victim deliberately or negligently incurred the damage, in which case his liability may be mitigated or exempted.

Article 79 Where any damage is caused by a failure to take security measures for an animal in violation of regulations, the keeper or manager of said animal shall bear tortious liability.

Article 80 Where any damage is caused by a fierce dog or other dangerous animal, the keeper or manager thereof shall bear tortious liability.

Article 81 Where any damage is caused by a zoo animal, the zoo shall bear tortious liability unless it can prove that due diligence has been exercised in managing said animal, in which case the zoo shall not be liable.

Article 82 Where any damage is caused by an animal that is abandoned or at large after being abandoned or escaping, the original keeper or manager thereof shall bear tortious liability.

Article 83 Where any damage is caused by an animal for which a third party is at fault, the injured party may seek compensation either from the keeper or manager thereof or from the third party. The keeper or manager may, after paying compensation, claim the same from the third party.

Article 84 Anyone who raises animals shall abide by laws and show respect for social ethics, and shall refrain from hindering the lives of others.

Chapter XI Liability for Damage Caused by Objects

Article 85 Where any damage is caused by a collapsing building, structure or other facility or by falling objects that are stored therein or attached thereto, the owner, manager or user shall bear tortious liability unless he can prove he was not at fault. The owner, manager or user may, after paying compensation, claim the same from other liable parties, if any.

Article 86 Where any damage is caused by a collapsing building, structure or other facility, the owner and the construction company shall be jointly and severally liable. The owner and the construction company may, after paying compensation, claim the same from other liable parties, if any.
Where any damage is caused by a collapsing building, structure or other facility due to the fault of other liable parties, such parties shall bear tortious liability.

Article 87 Where any damage is caused by an object thrown or falling from a building, if it is difficult to identify the infringing party, the user of the building who is the potential infringing party shall pay compensation unless he can prove that he was not the infringing party.

Article 88 Where any damage is caused by a collapsing pile of materials, the party responsible for the pile shall bear tortious liability unless he can prove that he was not at fault.

Article 89 Where any damage is caused by obstacles piled, dumped or scattered on a public road, the relevant unit or individual shall bear tortious liability.

Article 90 Where any damage is caused by a damaged tree, the owner or manager of the tree shall bear tortious liability unless he can prove that he was not at fault.

Article 91 Where any damage is caused by a road digging or underground repair operation without clear signs and safety measures, the construction operator shall bear tortious liability.
Where any damage is caused by a manhole or other underground facilities, the manager shall bear tortious liability unless he can prove that he has exercised due care.

Chapter XII Supplementary Provisions

Article 92 This Law shall come into effect on July 1, 2010.