Power of attorney for the indictment of throwing objects at high altitude.

The legal liability analysis of the high-altitude parabolic case of Haolaiju has been read for 259 times 2008-08-03 20:1Label: the legal liability source of high-altitude parabolic property management: China Property Management, the third issue of 2008 Author: Lu Qinlian The Shenzhen "high-altitude parabolic case of Haolaiju", which has attracted much attention from all walks of life, finally ushered in the first-instance judgment after nearly two years. The court of first instance rejected the plaintiff's claim for compensation from 73 owners, and at the same time held that the property service company had not fulfilled its due diligence obligation and sentenced it to bear 30% responsibility. I think it is inappropriate to make such a judgment before finding out some basic facts related to the determination of responsibility and accurately defining the responsibility of property service enterprises in property services. Case Review On the afternoon of May 3, 2006/KLOC-0, Zhong Mou, a fourth-grade primary school student, came home from school and walked to the sidewalk on the north side of the "Haolaiju" building at the intersection of Nanshan Avenue and Haide Second Road in Nanshan District. He was injured by the glass falling from the upstairs and died after being rescued by Nanshan District People's Hospital. After the accident, Nanshan police conducted an on-site investigation, but the police did not give a written investigation result about which owner's house the glass fell from. Zhong's parents sued 73 owners and property service companies who might throw objects at high altitude, demanding that the defendants compensate the plaintiff for funeral expenses, death compensation, spiritual comfort and other expenses of about 760,000 yuan, and bear the litigation costs of this case. Understanding of Article 126 of the General Principles of the Civil Law: Article 126 of the General Principles of the Civil Law stipulates: "If a building or other facilities and the shelving or hanging objects on the building collapse and fall off, causing damage to others, its owner or manager shall bear civil liability, unless he can prove that he is not at fault." This is the damage to buildings and facilities caused by the General Principles of the Civil Law. (I) Principles of Liability for Damage Caused by Buildings Experts in the field of civil law, including Professor Jiang Ping and Professor Wang Liming, generally believe that the liability for compensation stipulated in Article 126 of the General Principles of Civil Law is the liability for presumption of fault. According to the theory of civil law, fault presumption still belongs to the category of fault liability, but it is different from ordinary fault liability. Presumption of fault means that the perpetrator is presumed to be at fault by law, so the victim does not need to give evidence and prove the perpetrator's fault. If the actor wants to be exempted from his responsibility, he has the obligation to prove that he is not at fault. This is essentially a partial inversion of the burden of proof and an inversion of the burden of proof. Based on this consideration, fault is still an important element of this tort liability. (2) The realty service enterprise is not the manager in the sense of Article 126 of the General Principles of Civil Law, and if the building causes damage to people according to Article 126, its owner or manager shall bear civil liability. According to the relevant provisions of the Property Law, it is not difficult to understand and identify the "owner" here, but I think the understanding of the court of first instance is somewhat biased. From a global perspective, the civil laws of different countries have different provisions on the person responsible for this kind of infringement. For example, the French civil code stipulates that it is all; German civil code stipulates that it is the owner, possessor and maintenance obligor. There is no provision of "administrator" in the civil laws of all countries. We believe that the administrator stipulated in Article 126 of the General Principles of Civil Law is equivalent to the possessor in foreign civil law, and the owner also has the right to co-manage with * * * according to law. At the same time, according to the Property Management Regulations of the State Council, property management refers to "the owner selects a property service enterprise, and the owner and the property service enterprise repair, maintain and manage the house, supporting facilities and related sites in accordance with the property service contract, and maintain the environmental sanitation and related order in the property management area." According to the theory of differentiated ownership of buildings and the definition of property management, it can be seen that the owner entrusts part of his condominium rights to the property service enterprise according to the property service contract. Therefore, the property service company manages the * * * part of the building, not the exclusive part of the building. At the same time, the realty service enterprise manages some parts of * * * *, which is neither the possessor nor the user of * * *, so it does not belong to the "manager" in the sense of 126. Therefore, the plaintiff in the case of "Haolaiju Parabolic" requires the property service enterprise to bear civil liability for compensation as the manager of Haolaiju property. Analysis on the legal liability of falling objects and parabolic objects in buildings: there is no essential difference in the civil liability that the building owner or user should bear, whether it is caused by parabolic objects or falling objects. For example, the draft civil law drafted by the National People's Congress Working Committee? 6? 1 Article 56 of the Tort Liability Law stipulates: "If an object thrown from or falling off a building causes damage to people, and the specific infringer cannot be determined, all users of the building shall bear the tort liability, unless the user can prove that he is not a specific infringer." However, it is necessary to further explain the legal responsibility of property service enterprises in order to demonstrate clearly. Parabolic objects at high altitude are different from natural collapse and falling off, which is the subjective behavior of the actor. This kind of event is sudden, immediate and unpredictable for people other than actors. For this kind of incident, even if the property service company has fulfilled its full duty of care, it is difficult to avoid the occurrence of this kind of incident (not including the case where the property service company finds that the actor tried to throw something without stopping it), and the relevant laws do not stipulate that the property service company has this responsibility, so there is no legal basis for requiring the property service company to bear the liability for damages caused by the person. For falling objects, according to the location of falling objects, it can be divided into two situations, one is from the proprietary part and the other is from the * * * part. For the proprietary part, according to the Constitution and relevant laws, the owner has complete ownership, and the property service enterprise has no right or obligation to manage it without the authorization of the owner, so the property service enterprise does not bear civil liability for the damage caused by falling objects in the sky. As for some parts of * * *, according to the above, the realty service enterprise only carries out maintenance, conservation and management on some parts of * * according to the realty service contract. If the property service enterprise fails to perform the contract or has defects in the performance of the contract, the infringer is still the owner or user rather than the property service enterprise. Improper judgment of first instance (1) The court of first instance only held that "the defendant Shenzhen Jinfeng Property Management Co., Ltd., as the property manager of the building involved, should repair, maintain and manage the house, supporting facilities and related sites in accordance with the stipulations of the property service contract, so as to maintain the environmental sanitation and order in the relevant areas" and ". Defendant Shenzhen Jinfeng Property Management Co., Ltd. did not provide evidence to prove that it had fulfilled its duties in time, indicating that it had not fulfilled its duties as a property manager and should be liable for the plaintiff's damage. In this case, it is considered that it is the responsibility of the property service enterprise to prevent falling objects (stop throwing objects at high altitude), and it is far-fetched to judge that the property service enterprise should bear the responsibility. (2) At the same time, the plaintiff in this case filed a lawsuit of infringement, and the court of first instance ruled that the property service enterprise should bear the responsibility according to the stipulations of the property service contract, which changed the plaintiff's claim into a lawsuit without the right to breach the contract. This is illegal. At the same time, since it is a lawsuit of breach of contract, why should the property service enterprise bear the spiritual consolation money? (3) The understanding of the court of first instance that "the property management regulations clearly stipulate that property service enterprises should stop acts violating laws and regulations such as public security, environmental protection, property decoration, decoration and use within the property management area, and report to the relevant administrative departments in time" is also inappropriate. So far, there is no evidence to prove that the damage is caused by "violation of laws and regulations on public security, environmental protection, property decoration, decoration and use in the property management area". Since there is no such behavior, how can property service enterprises perform their duties of "stopping" and "reporting to relevant administrative departments in time"? To sum up, in the case of falling or parabolic buildings, property service enterprises are not managers in the sense of general principles of civil law. In the absence of the infringer, the subject of compensation should be the owner or user of the building, not the property service enterprise. If the realty service enterprise fails to perform its duties as agreed in the contract, it only bears the liability for breach of contract, and the realty service enterprise is not a qualified subject of tort liability. If damage is caused by proprietary falling objects, the realty service enterprise has neither tort liability nor breach of contract liability; If * * * parts of falling objects cause damage to people, and the owners think that the realty service enterprise is in breach of contract, they may apply to list the realty service enterprise as a third party or the owners shall bear the responsibility and sue separately, requiring the realty service enterprise to bear the liability for breach of contract. The innocent death of primary school students is regrettable and sympathetic. We strongly condemn the real "culprit" and actively advocate good social morality, but human feelings can't replace the law. Any law-abiding organization or individual is weak in the face of powerful legal weapons. Today, when we are actively building a socialist society ruled by law, all parties should know and abide by the law and make contributions to the construction of a harmonious society in China. Author: Shenzhen Property Management Association