Making It Right

By WANG HAIRONG

Making It Right

By WANG HAIRONG

China has achieved a milestone in protecting citizens’ rights by enacting a Tort Law

PROVIDING PROTECTION: Deputies attend the 12th session of the 11th National People’s Congress Standing Committee on December 22, 2009. The committee adopted the Tort Law that is designed to provide a remedy for civil wrongs

The National People’s Congress (NPC) Standing Committee adopted a new Tort Law on December 26, 2009, which is designed to provide a remedy for civil wrongs. It will take effect in July 2010.

The law has 92 articles that define liability in a wide range of circumstances, including traffic and medical accidents, workrelated injuries, product defects, infringement of rights over the Internet, pollution and dangerous activities.

A much-needed law

Before the reform and opening up in 1978, China did not have any tort laws except for rules and regulations on railroad and maritime accident compensation that were enacted by the Ministry of Railways and the Ministry of Transport, respectively.

“When I was in what is now known as Southwest University of Political Science and Law in 1979, almost no one there knew what tort law was,” said Wang Weiguo, a professor of China University of Political Science and Law.

On April 12, 1986, the General Principles of Civil Law was passed by the NPC, which included a chapter on tort liability. Since then, a few laws relating to tort have been adopted, such as those covering traffic and medical accidents and product defects.

Ren Maodong, an NPC Standing Committee member, said China had more than 40 laws involving tort liabilities, so it was difficult to coordinate all of the new provisions.

A tort law is necessary to allow people to be compensated when another’s carelessness, recklessness or intentional misconduct causes injury. Tort cases such as traffic and medical accidents are common in daily life.

A number of tort liability cases in China have recently attracted intense public attention. In 2008, melamine-tainted milk poisoned 296,000 infants and led to the death of six, according to statistics from China’s Ministry of Health.

MORE EQUAL NOW: The Tort Law addressespublic concern over different levels of compensation for deaths of rural versus urban residents

On June 27, 2009, a 13-floor building under construction in Shanghai’s Lotus Riverside residential complex collapsed, killing one worker.

After a heavy rain in July 2009, two buildings in Chengdu, Sichuan Province, tilted against each other, leaving residents worried the rickety buildings would soon collapse.

In November 2009, five-month-old Xu Xingzhou died of an eye disease at Nanjing Children’s Hospital. Realizing her baby’s disease was worsening, his mother repeatedly begged the doctor for treatment. The doctor on duty instead played computer games and did not take adequate action to save the child. The baby died the following morning.

Tort liability cases account for a large proportion of all civil cases, and the infringements on people’s rights can come in different forms. Cases can be very complicated, said Du Wanhua, Presiding Judge of the Supreme People’s Court’s No. 1 Civil Trials Tribunal. He said judges needed a comprehensive tort liability law to which they could refer. The Tort Law has been designed to fill the gap.

Highlights of the law

The Tort Law systematically addresses liability issues, and has pushed several innovations through the legal system, said Lin Jia, a Renmin University of China law professor.

It is the first Chinese law that addresses infringements of people’s rights over the Internet. Article 36 of the law stipulates that users and service providers infringing on others’ rights over the Internet can be held liable for the violation. Internet service providers who fail to delete posts or block links that have violated other people’s legal rights or privacy are liable for the violation.

As the number of Internet users soars, electronic intrusions on people’s privacy are also becoming an increasingly salient issue. In October 2009, a case involving Internet privacy caused a public outcry. A person with the username Yan Deli claimed that she had AIDS and published the phone numbers of 272 males with whom she allegedly had sexual contact. A girl with that name came forward, denying she posted any such information, and said that someone must have done it to defame her.

Others have been harassed with the Chinese phenomenon known as humanflesh search engine, in which Internet users launch a massive hunt for and publish certain people’s personal information. The Tort Law is meant to curb such infringements on people’s privacy.

The law also addresses public concern over unequal compensation for death. The Global Times reported a case in 2005 about three children killed in a traffic accident in southwest China’s Chongqing Municipality. The two urban children’s families were compensated with more than 200,000 yuan ($29,400) each, whereas the rural child’s family received only 90,000 yuan ($13,235).

The compensation gap between the rural and urban families arose from a judicial explanation regarding compensation for personal injury that the Supreme People’s Court published in December 2003, according to Yang Lixin, a law professor in Renmin University of China. The judicial explanation specified that the victim’s loss of income should be accounted for when computing compensation for death, and different compensation standards are applied to rural and urban victims.

Article 17 of the Tort Law stipulates that deaths caused by the same violation are entitled to equal compensation. Wang Liming, Vice President of Renmin University of China and a civil law expert, told the Global Times that the new law promotes social equality and justice.

The law is also the first in China to explicitly stipulate compensation for serious mental distress, according to Lin. It does not specify uniform compensation standards, giving judges the discretion to decide on the amount of compensation based on legal precedents.

In terms of compensation for harm caused by defective products, the law stipulates that companies that knowingly produce or sell defective products, fail to warn customers, recall defective products or take other effective measures to remedy damages could face civil action. Victims may seek“punitive compensation” higher than their actual losses.

For collapsed buildings, Article 86 of the law stipulates that developers and construction companies should take joint liability.

The law also covers liability regarding falling objects. Article 87 states that, in cases when the party causing objects to fall off buildings cannot be identified, all users of the building who cannot exculpate themselves can be held liable.

The law also has a chapter addressing medical disputes. Medical personnel not fulfilling their duties are to be held liable for harm caused to patients. The law also holds hospitals liable for injuries caused by defective medical equipment or problematic medicines.

The new tort law is people-oriented, said Wang, and shows that lawmakers have put human lives and health first.

“The law has answered many of the questions that the public are concerned with, and those that have been encountered by judges and lawyers while handling cases,” said Guo Feng, a law professor at the Central University of Finance and Economics.

Recent Tort Cases

Nanjing infant mortality: On the morning of November 3, 2009, fivemonth-old infant Xu Xingzhou was taken to Nanjing Children’s Hospital, east China’s Jiangsu Province. Xu was diagnosed with an eye infection and was hospitalized. His condition worsened that night. His mother repeatedly pleaded with Mao, the doctor on duty for help. The patient’s family alleged that the doctor was playing computer games instead of attending to the child. The baby died the next morning. An initial investigation made by the hospital said that Mao was writing his thesis that night. A later investigation by an independent team including computer experts confirmed the doctor had been playing games. The doctor was dismissed and his medical license was revoked.

Human flesh search engine:On December 29, 2007, Jiang Yan left a goodbye message on her blog and jumped off a building, committing suicide because of her husband’s extramarital affair. Some netizens posted contact information for Jiang’s husband Wang Fei, his mistress and her parents. Wang and his family were harassed. Wang sued three Internet service providers and claimed 135,000 yuan ($19,852) for compensation for mental distress. A Beijing court fined Zhang Leyi, Jiang’s friend, for posting personal information about Wang and his mistress online. The court ordered him to delete all of the articles and pay a fine of 5,684 yuan ($836).

Hebei AIDS case:In October 2009, a netizen writing on the Internet with the username Yan Deli alleged she had AIDS and posted the cell-phone numbers of 279 males who allegedly had sexual contact with her, as well as her home address in Hebei Province, her ID, photos of herself and her family. Journalists used the information to find Yan, who denied that she had posted the message. Yan was later tested negative for AIDS and the case was reported to police.

Open-chest examination:Zhang Haichao, a young migrant worker from Henan Province, suspected that he suffered from black lung disease and was not satisfied with the diagnosis by the local agency designated to investigate occupational diseases. Zhang requested that another local hospital open his chest and check his lungs. Doctors later confirmed that Zhang had contracted an occupational disease and Zhang was compensated.

Sanlu tainted milk sandal:On September 11, 2008, the Ministry of Health said that some infants who had come down with kidney problems had a history of drinking Sanlu formula milk. They suspected that Sanlu’s milk had been adulterated with melamine. Sanlu recalled its products that evening. Tests conducted by the company confirmed its milk was tainted. Sanlu received consumer complaints about its products as early as March 2008, but did not recall its products. Later, milk produced by other producers was also found to contain abnormal levels of melamine. Statistics show that melaminetainted milk caused urinary tract problems in 296,000 infants and led to the death of six by the end of 2008. Sanlu was fined nearly 50 million yuan ($7.35 million), and its former head, Tian Wenhua, was sentenced to life in prison.

Different prices for death:In 2005, three girls riding to school together were killed in a traffic accident in Chongqing. The families of the two girls who were from the city were compensated with more than 200,000 yuan ($29,400) each, whereas the family of the girl from a rural area received only 90,000 yuan ($13,235).

(Sources: Xinhua News Agency, Global Times)