중국 불법행위법의 최근동향에 관한 연구 - 불법행위책임법(2009년)의 구성과 주요내용을 중심으로 -

Abstract

The purpose of this study is to survey the Tort Liability Act, passed on december 26, 2009, will take effect on July 1, 2010(hereafter, the Tort Act). China has made the Civil Code since 2002, which is not completed but is developing step by step, followed by the Contract Act(1999) and the Real Rights Act(2007). The Tort Liability Act is one of the most important law field of the Civil Code of China, because the Tort law protects the private rights and interests. The Tort Act is mainly based on existing provisions, such as the general Principles of the Civil Law, the Act on Protection of Consumenr Rights, the Product Quality Law, etc and some judicial interpretations of the supreme court. Especially, it affirms, modifies and elaborates the he general Principles of the Civil Law(1986). Before its proclamation, there were two official drafts, the first in 2002, and the second in 2008, which are mainly the some with the Tort law, and several private drafts. The Tort Act contains 12 chapters with 92 provisions，as follows : General provisions(chapter 1)ㆍConstituting liability and methods of assuming liability(ch. 2)ㆍCircumstances to waive and mitigate liability(ch. 3)ㆍSpecial provisions on tortfeasors(ch. 4)ㆍProduct liabilityㆍ(ch. 5)ㆍLiability for motor vehicle traffic accident(ch. 6)ㆍLiability for medical malpractice(ch. 7)ㆍLiability for environmental pollution(ch. 8)ㆍLiability for ultra-hazardous activity(ch. 9)ㆍLiability for harm caused by domestic animal(ch. 10)ㆍLiability for harm caused by object(ch. 11)ㆍSupplementary provision(ch. 12). Compared to the Korean Civil Code，which under the part of obligations(part III), provides, concurrently, a contract and a tort, the Tort Act has no part of obligations, but has only the contract act and the tort act. According to the Tort Act, one who is at fault for infringement upon a civil right of another person shall be subject to the tort liability(article 2). It also covers infringements of personal rights, such as name, reputation, portrait, privacy and etc. The principle of tort liability on the basis of general provisions, is universally accepted. The default rule of the liability is the fault liability and in exception of the presumption of fault and no-fault liability without fault(articles 6and 7). The tort act contains, in its general part, criteria for liability, compensation for damages, defenses and mental damages, as well as in its specific part, product liability, motor vehicle accident liability, internet service provider liability, medical malpractice, environmental pollution liability, liability for ultra-hazardous activity and liability for damage caused by animals or by objects. It has also special provisions such as liability of persons with diminished capacity, joint and several liability of the joint tortfeasors. Introducing punitive damages is also one of its key features. All these are the result of the unification of related provisions which are currently found in many fields. Its new and revolutionary approach and contents will be very suggestive for us preparing the reform of our code civil since 2009,although it seems to have a some lack of harmony in it.