When will the "pain hanging over the city" stop?

When will the "pain hanging over the city" stop?

Parabolic phenomenon at high altitude is called "the pain hanging over the city". In recent years, cases of casualties caused by falling objects from high altitude have been reported frequently. The long-term treatment of this stubborn disease afflicts the urban management and legislative departments. Whether the issue of compensation and accountability after the event can be properly handled also brings great challenges to the court's trial execution.

Since 2000, Chongqing court ruled the first case of compensation for falling objects without owners in high altitude in China, it has become a common principle to share the liability for compensation for such cases.

Recently, the court in Yubei District of Chongqing ruled a case in which the user of a building who may cause injury compensated the victim for the loss, which once again aroused widespread concern in society. Why are such cases common and how to avoid them? What are the fetters encountered in judicial practice? After the promulgation of General Principles of Civil Law, where will Article 87 of Tort Liability Law go? Recently, the reporter interviewed this.

Incidents of falling objects from high altitude are endless.

During the visit, the reporter found that in some residential buildings, especially on the balconies of old communities, it is not uncommon to pile up sundries, potted plants and even hang mops. Even some air conditioning plug-ins are piled with sundries that are in danger of falling at any time.

These security risks may turn into injury accidents at any time. The reporter roughly combed the relevant reports and found that since June this year, there have been dozens of falling objects in Chongqing reported by the media alone.

Recently, under a residential building in Gu 'nan Street, Qijiang District, Chongqing, three little girls were skipping rope near the shops in the neighboring street, and a TV remote control suddenly fell from the sky. The girls stopped to watch for a while, and then continued to play. Unexpectedly, in less than half a minute, a children's toy car hit again, about 1 meter away from where the girl jumped rope. Three girls immediately ran into the store to hide. Then, a glass cup fell in place and everyone next to it was crying.

After investigation by the police, the parabolic person is a 3-year-old boy from the owner's house on 13 floor. The child dropped his belongings from the balcony fence because he didn't take good care of them. Fortunately, he didn't hit anyone, otherwise the consequences would be unimaginable.

On the second day after the incident, when Mr. Zhou passed the Jintang Building in Yuzhong District, Chongqing, two foam boards slowly fell from the upstairs. Although these two foam boards are not enough to hurt people, Mr. Zhou also found that a mop of about 1 m and a pack of used chopsticks fell from the same position a few minutes ago. Fortunately, none of these things hit the pedestrians downstairs.

When the relevant personnel investigated the matter, the relevant residents did not admit that the falling object was their own. On the other hand, in June this year, there was a falling object wounding incident in Kangdi Capitol Hill Community in Nan 'an District, and the owner of the falling property voluntarily admitted his fault.

In the afternoon, a big clothes rack for drying bedding fell from the sky, injuring the head of a passing boy, and then the injured boy was taken to the hospital for rescue. When the accident happened, the owner of the big clothes rack was not at home, but he happened to pass by the incident. After returning home, the owner found that it was his own hanger and took the initiative to report the situation to the police.

The successive falling objects have attracted more and more attention from the society. Recently, in order to create a harmonious, safe and civilized living environment, Jiansheng Town, dadukou district, Chongqing held a civilized publicity activity of "Rejecting parabolic objects from high altitude and starting from me" in Zhuyuan Community. During the activity, volunteers explained the hazards of high-altitude parabolic objects to residents and issued a proposal. More than 80 residents signed the activity banner to express their determination to refuse throwing objects at high altitude.

At the activity site, a mother took a two-year-old child by the hand and said, "What is thrown away is sundries, and what is lost is civilization. As a parent, I have the responsibility to let my children develop civilized habits from an early age. "

In a series of falling objects, although most of them did not cause personal injury, once they did, most of them caused serious consequences, and because the owner of the falling objects could not be confirmed basically, most of the injured people resorted to the court.

There is no guarantee that the bottle will not fall when you are not at home.

Recently, the court in Yubei accepted the case of five people, including Zhang, v. Du and others 18 people, who were involved in the dispute over the liability of unidentified throwing objects and falling objects. The case involved a wine bottle falling from the upstairs and injuring passers-by. However, because there is no evidence to prove that the specific infringer has been identified, in order to safeguard the legitimate rights and interests of the victims, the Yubei court ruled that the users of the buildings that may be damaged should compensate the victims for their losses.

The five plaintiffs in this case are all children of the injured Xiao (who later died of illness). Xiaomou took his daughter Zhang to live in a building unit in Huixing Street, Yubei District, Chongqing.

At 2011March 7 15: 30, Xiao was sunbathing at the entrance of the building, but unfortunately he was injured by a bottle falling upstairs. Xiao was sent to Chongqing Orthopedic Hospital of Traditional Chinese Medicine for treatment after being injured, and was diagnosed as a fracture of the left femur. On the same day, he was transferred to Chongqing Zhongshan Hospital for hospitalization, and was discharged after 18 days. During hospitalization, Wuyuan reported a total of 45,343.06 yuan for medical expenses, nursing expenses, hospital food subsidies and nutrition expenses.

The court found that the defendants Du Mou, Lu Mou, Li Mou and Zhang Mou were the owners of the relevant houses in the building, and they were the upstairs residents of Xiao Mou's injured place. In addition, Chen Mou, the owner of No.9-4-1,has rented the house to seven people, including Guo and Yuan. As of March 7, 20 1 1 year, that is, the day Xiao was injured, it was still within the lease term agreed in the contract.

The court held that according to Article 87 of the Tort Liability Law, if it is difficult to determine the specific infringer because of damage caused by throwing objects or falling objects from buildings, in addition to proving that he is not an infringer, the user of the building who may have caused the damage should make compensation. In this case, Xiaomou was injured by a bottle that fell from the building. During the trial, it was impossible to confirm which room the bottle fell from, so it was impossible to determine the specific infringer. According to the law, the user of the building who may cause damage should compensate the plaintiff for the loss.

Therefore, the Yubei court ruled that Du Mou, Lu Mou, Li Mou, Zhang Mou, Guo Mou, Yuan Mou and others were the actual users of the incident building, and compensated the plaintiff for all losses on average.

After the trial judge pointed out that the harmful substances in this case are objects falling from buildings, and the key to this case is not whether the objects causing the damage are dominated by people. Some defendants argue that they are not at home, but this does not prove that they do not possess the object, nor does it mean that the bottle will not fall. There is no necessary connection between the two.

In addition, the defendant in this case, as an upstairs resident, can be identified as "the user of the building that may be infringed" according to social life experience and common sense, so the upstairs resident who may be infringed should be compensated equally.

The judge said that the judgment of the case supported the plaintiff's claim. On the one hand, the injured are innocent and should be compensated accordingly. However, due to the particularity of the tort in this case, it is difficult to determine the infringer because of throwing or falling objects from high altitude. However, it is obviously unfair to let the victims bear the losses. Compensation for losses by upstairs residents is conducive to protecting the legitimate rights and interests of victims.

"On the other hand, the possible victims of parabolic objects or falling objects at high altitude should bear the tort liability, remind the upstairs residents to be cautious, don't throw objects downstairs at will, and don't place objects that may fall in their own houses, which will help reduce the occurrence of similar infringement cases and create a good living environment." The judge said.

Where does Article 87 of Tort Liability Law go?

The reporter interviewed two civil law experts from Southwest University of Political Science and Law on how to divide responsibilities in judicial practice, whether it is necessary to bear criminal responsibility for casualties, and whether there is a better legal idea for dividing responsibilities in the future.

There are two kinds of falling objects, one is that someone throws them out voluntarily, and the other is that there are deposits outside the building that are blown down by the wind. In the second case, Wu Chunyan, a professor at the School of Civil and Commercial Law of Southwest University of Political Science and Law, believes that if the falling object is found to be a property with the obligation to remind and eliminate danger, and the property is found to be lazy in performing its duties, the property should share the responsibility with the owner or user of the house.

According to the logic of responsibility sharing, if falling objects from high altitude constitute negligence and cause death, should the punishment be divided equally? Wu Chunyan said that criminal responsibility is usually a criminal act against a natural person, that is, a specific actor is sanctioned. Therefore, in this case, because no one can be found to commit specific criminal acts, it is impossible to pursue and bear criminal responsibility. In the case that "possible users" do not constitute the same crime, it is impossible to bear criminal responsibility alone.

According to Article 87 of the Tort Liability Law, some innocent people will indeed be "implicated". Are there any other legal provisions that are more suitable than the existing laws? Wu Chunyan believes that the provision of Article 87 of the Tort Liability Law itself is an expedient measure. As can be seen from the legislative expression, it is stipulated that possible building users should be given "appropriate compensation" instead of taking tort liability. The purpose of legislation is actually based on the consideration of victims' relief, which is consistent with the concept of priority of victims' relief in tort liability law and the result of balancing the interests of all parties through legislation.

Earlier, there was a voice saying that after the promulgation of the General Principles of the Civil Law, Article 87 of the Tort Liability Law would not be ruled out. In this regard, Wu Chunyan said that it is indeed possible to cancel. "As mentioned above, this situation actually does not meet the constitutive requirements of tort liability. In fact, it is somewhat reluctant to bring this situation into the normative category of tort liability law. If there is more comprehensive social relief and social security legislation, including the situation that the victim can't get relief, the tort liability law can also stipulate tort liability more purely.

In this regard, Xu, an associate professor at the School of Civil and Commercial Law of Southwest University of Political Science and Law, analyzes it from four aspects: first, the legitimacy problem, why should others be asked to bear responsibility because they have not implemented any behavior and there is no fault; Second, it is precisely because the parties are not at fault and cannot make a reasonable explanation to them, so it is difficult to implement them in execution; Third, article 87 has no preventive function, and a good tort liability law should not be passive relief, but prevent the occurrence of tort in advance; Fourth, at the moment of building a smart city, the possibility of finding out the infringer is becoming clearer and clearer.

In today's buildings, it is easy to think that such things will happen frequently. Everyone should take care of his own property, and don't wait for the situation to happen to find the reason.