PRC Tort Liability Law

(Adopted at the 12th Session of the Standing Committee of the 11th National People's Congress on December 26 2009 and effective as of July 1 2010.)

PRC President's Order (No.21 of the 11th NPC)

Part One: General provisions

Article 1: This Law has been formulated in order to protect the lawful rights and interests of civil subjects, clarify liability for torts, prevent and sanction tortious acts and promote social harmony and stability.

Article 2: When civil rights and interests are infringed, tort liability shall be borne in accordance herewith.

For the purposes of this Law, civil rights and interests include the right to life, right to health, right to one's name, right to one's reputation, right to one's honour, right to one's image, right to privacy, right to marry as one wishes, guardianship rights, ownership rights, usufructuary rights, security interests, copyrights, patent rights, exclusive right to use a trademark, right to discoveries, equity interests, right of succession and other such personal and property rights and interests.

Article 3: An injured person has the right to demand that the tortfeasor bear tort liability.

Article 4: If a tortfeasor is required to bear administrative liability or criminal liability for an act, the same shall not affect his/her/its bearing tort liability for one and the same act in accordance with the law.

If a tortfeasor is required to bear both tort liability and administrative liability or criminal liability for one and the same act and his/her/its property is insufficient to make payment, he/she/it shall first bear tort liability.

Article 5: If other laws contain special provisions on tort liability, such provisions shall apply.

Part Two: Constitution of, and means of bearing, liability

Article 6: If an actor, through his/her/its own fault, infringes upon the civil rights or interests of another, he/she/it shall bear tort liability.

If, pursuant to the law, an actor is presumed to be at fault and he/she/it is unable to show that he/she/it was not at fault, he/she/it shall bear tort liability.

Article 7: If an actor prejudices the civil rights or interests of another and laws provide that he/she/it is required to bear tort liability, such provisions shall apply regardless of whether or not he/she/it was at fault.

Article 8: If two or more persons jointly commit a tortious act, thereby causing injury to another, they shall bear joint and several liability.

Article 9: If someone abets another to commit or assists another in committing a tortious act, he/she shall bear joint and several liability with the actor.

If someone abets a person with no or limited civil capacity to commit or assists a person with no or limited civil capacity in committing a tortious act, he/she shall bear tort liability. If the guardian of the person with no or limited civil capacity failed to fulfil his/her guardianship duties, he/she shall bear the corresponding liability.

Article 10: If two or more persons commit an act that jeopardises the safety of another or the safety of the property of another and the act(s) of one or more of them cause(s) injury to another and the specific tortfeasor(s) can be determined, the tortfeasor(s) shall bear the liability. If the specific tortfeasor(s) cannot be determined, the actors shall bear joint and several liability.

Article 11: If two or more persons each commits a separate tortious act that results in one and the same injury, and if the tortious act of each person would in and of itself have been sufficient to cause all of the injury, the actors shall bear joint and several liability.

Article 12: If two or more persons each commits a separate tortious act that results in one and the same injury and the extent of each person's liability can be determined, each of them shall bear the corresponding liability. If the extent of each person's liability is impossible to determine, they shall each be liable for damages equally.

Article 13: If laws provide for the bearing of joint and several liability, the injured person shall have the right to demand that some or all of the jointly and severally liable persons bear liability.

Article 14: The jointly and severally liable persons shall determine their respective measures of damages in proportion to the extent of each person's liability. If the extent of each person's liability is impossible to determine, they shall each be liable for damages equally.

A jointly and severally liable person who pays more than the amount of damages payable by him/her/it shall have the right to recover the same from the other jointly and severally liable persons.

Article 15: The principal means of bearing tort liability are set forth below:

(1) cessation of the tort;

(2) elimination of the obstruction;

(3) eradication of the danger;

(4) return of the property;

(5) restoration to the original state;

(6) indemnification of the loss;

(7) apologising; and/or

(8) elimination of the effect and restoration of reputation.

The aforementioned means of bearing tort liability may be applied singly or in combination.

Article 16: When a tort committed against another results in physical injury, indemnification shall be given for reasonable expenses paid in treatment and recovery such as medical expenses, nursing care expenses and travel expenses, and the reduction in income arising due to absence from work. If a permanent disability is caused, the expenses for disability aids shall additionally be indemnified and disability compensation additionally paid. If death is caused, the funeral expenses shall additionally be indemnified and death compensation additionally paid.

Article 17: If one tortious act results in the death of more than one person, an identical amount of death compensation may be determined for each victim.

Article 18: If an injured person dies, his/her close family members shall have the right to demand that the tortfeasor bear tort liability. If the injured person is an entity, and such entity is divided or merged, the entity that succeeds to its rights shall have the right to demand that the tortfeasor bear tort liability.

When an injured person dies, the person who paid the injured person's reasonable expenses, such as medical expenses and funeral expenses shall have the right to demand that the tortfeasor indemnify such expenses, unless the tortfeasor has already paid such expenses.

Article 19: If a tort is committed against the property of another, the loss of the property shall be calculated based on the market value thereof at the time the loss occurred or by other means.

Article 20: If a tort committed against the personal rights and interests of another results in a property loss, indemnification shall be paid in line with the loss incurred by the injured person. If the loss incurred by the injured person is impossible to determine, but the tortfeasor derived a benefit from the tort, indemnification shall be paid in line with the benefit so derived. If the benefit derived by the tortfeasor is impossible to determine, the injured person and the tortfeasor fail to reach a consensus on the measure of damages after consultations and a legal action is instituted in a people's court, the people's court shall determine the measure of damages based on the actual circumstances.

Article 21: If a tortious act threatens the safety of another or the safety of the property of another, the injured person may demand that the tortfeasor bear tort liability by ceasing the tortious act, eliminating the obstruction, eradicating the danger, etc.

Article 22: If a tort committed against the personal rights and interests of another results in serious emotional distress, the injured person may demand indemnification for emotional distress.

Article 23: If a person suffers injury in attempting to prevent or halt a tort committed against the civil rights or interests of another, the tortfeasor shall bear liability therefor. If the tortfeasor absconds or lacks the capacity to bear such liability, and the injured person demands compensation, the beneficiary shall give him/her/it appropriate compensation.

Article 24: If neither the victim nor the actor was at fault in the occurrence of an injury, the loss may be shared by the parties based on the actual circumstances.

Article 25: After an injury has occurred, the parties may hold consultations on the method of payment of the indemnification. If they fail to reach a consensus, the indemnification shall be paid in one lump sum. If payment in one lump sum presents genuine difficulties, the indemnification may be paid in instalments, provided, however, that corresponding security is provided.

Part Three: Exculpatory and mitigating circumstances

Article 26: If the injured person was also at fault in the occurrence of the injury, the liability of the tortfeasor may be reduced.

Article 27: If injury is caused by a willful act of the victim, the actor shall not be liable.

Article 28: If injury is caused by a third party, the third party shall bear tort liability.

Article 29: If another is injured due to the occurrence of an event of force majeure, no liability shall be borne, unless otherwise provided in law, in which case such provisions shall apply.

Article 30: If injury is caused by an act of legitimate self defence, no liability shall be borne. However, if the act of legitimate self defence exceeds the necessary extent, resulting in unwarranted injury, the person who exercised such legitimate self defence shall bear the appropriate liability.

Article 31: If injury is caused by an emergency escape from danger, the person who caused the danger shall be liable. If the danger arose due to natural causes, the person who made the emergency escape from danger shall not be liable or shall provide appropriate compensation. If inappropriate measures were taken during the emergency escape from danger or if they exceeded the necessary extent, causing unwarranted injury, the person who made the emergency escape from danger shall bear the appropriate liability.

Part Four: Special provisions on liable subjects

Article 32: If a person with no or limited civil capacity causes injury to another, his/her guardian shall bear tort liability. If the guardian fulfilled his/her guardianship duties, his/her tort liability may be reduced.

If a person with no or limited civil capacity who has property causes injury to another, the indemnification shall be paid from his/her property and any shortfall shall be paid by his/her guardian.

Article 33: If a person with full civil capacity causes injury to another during a temporary episode of unawareness of his/her own actions or loss of control, he/she shall bear tort liability if he/she was at fault. If he/she was not at fault, he/she shall, based on his/her economic situation, pay appropriate compensation to the victim.

If a person with full civil capacity causes injury to another during a temporary episode of unawareness of his/her actions or loss of control due to inebriation or abuse of a narcotic or psychotropic drug, he/she shall bear tort liability.

Article 34: If a worker causes injury to another due to performance of his/her work duties, his/her employer shall bear tort liability.

If, during his/her placement term, a worker placed by a temp agency causes injury to another due to performance of his/her work duties, the entity with whom he/she was placed shall bear tort liability. The temp agency shall bear the corresponding supplementary liability if it too was at fault.

Article 35: In a service relationship arising between individuals, if the party providing the service causes injury to another due to provision of the service, the recipient of the service shall bear tort liability. If the party providing the service himself/herself suffers injury due to provision of the service, each party shall bear liability corresponding to the extent of his/her fault.

Article 36: If a network subscriber or network service provider uses the network to commit a tort against the civil rights or interests of another, he/she/it shall bear tort liability.

Where a network subscriber uses the network services to commit a tortious act, the injured person shall have the right to notify the network service provider to take necessary measures such as deletion, blocking and severance of the link. If the network service provider fails to take the necessary measures in a timely manner after receipt of the notice, it shall bear joint and several liability with the network subscriber for the additional injury caused.

If a network service provider is aware that a network subscriber is using its network services to commit a tort against the civil rights or interests of another and fails to take the necessary measures, it shall bear joint and several liability with the network subscriber.

Article 37: If the manager of premises used by the public, such as a hotel, shopping mall, bank, bus or train station, or place of entertainment, or the organiser of a mass activity fails to fulfil his/her/its obligation of ensuring safety, resulting in injury to another, he/she/it shall bear tort liability.

If an act committed by a third party causes injury to another, the third party shall bear tort liability; if the manager or organiser failed to fulfil his/her/its obligation of ensuring safety, he/she/it shall bear the corresponding supplementary liability.

Article 38: If a person with no civil capacity sustains a physical injury while studying or living at a kindergarten, school or other educational institution, the kindergarten, school or other educational institution shall be liable, unless it is able to show that it fulfilled its educational and management duties, in which case it shall not be liable.

Article 39: If a person with limited civil capacity sustains a physical injury while studying or living at a school or other educational institution, the school or other educational institution shall be liable if it failed to fulfil its educational and management duties.

Article 40: If a person with no or limited civil capacity, while studying or living at a kindergarten, school or other educational institution, sustains a physical injury caused by a person other than the personnel of the kindergarten, school or other educational institution, the tortfeasor shall bear tort liability. If the kindergarten, school or other educational institution failed to fulfil its management duties, it shall bear the corresponding supplementary liability.

Part Five: Product liability

Article 41: If injury is caused to another due to a defect in a product, the producer shall bear tort liability.

Article 42: If injury is caused to another due to a product defect that developed as a result of the fault of the seller, the seller shall bear tort liability.

If the seller is unable to name the producer or supplier of the defective product, the seller shall bear tort liability.

Article 43: When injury is caused due to a defect in a product, the injured person may demand indemnification from the producer of the product, or from the seller of the product.

If the defect in the product was caused by the producer, the seller shall have the right, after paying indemnification, to recover the same from the producer.

If the defect in the product developed due to the fault of the seller, the producer shall have the right, after paying indemnification, to recover the same from the seller.

Article 44: If a defect that develops in a product due to the fault of the carrier, warehouser or other such third party causes injury to another, the producer or seller shall have the right, after paying indemnification, to recover the same from the third party.

Article 45: If a defect in a product jeopardises the safety of another or the safety of the property of another, the injured person shall have the right to demand that the producer or seller bear tort liability by eliminating the obstruction, eradicating the danger, etc.

Article 46: If, after being placed on the market, a product is found to contain a defect, the producer or seller shall take remedial action in a timely manner such as issuing a warning or recalling the product. If injury is caused due to a failure to take remedial action in a timely manner or due to ineffective implementation of such action, the producer or seller shall bear tort liability.

Article 47: If a producer or seller has clear knowledge that a product contains a defect but nonetheless continues to produce or sell the same, resulting in the death of another or serious harm to the health of another, the injured person shall have the right to demand commensurate punitive damages.

Part Six: Liability arising from motor vehicle traffic accidents

Article 48: If a motor vehicle is involved in a traffic accident that causes injury to another, damages shall be borne in accordance with relevant provisions of the Road Traffic Safety Law.

Article 49: If, due to leasing, borrowing or other such circumstance, the owner and user of a motor vehicle are different persons and after the occurrence of a traffic accident the party with the motor vehicle is determined to be responsible therefor, the indemnity shall be paid by the insurance company up to the liability limit of the mandatory vehicle insurance. The user of the motor vehicle shall be liable for indemnification of any shortfall. If the owner of the motor vehicle was also at fault in the occurrence of the injury, he/she shall bear the corresponding liability for damages.

Article 50: If a motor vehicle has been transferred and delivered between parties by virtue of a sale, etc. and while registration of the transfer of ownership remains outstanding a traffic accident occurs following which the party with the motor vehicle is determined to be responsible therefor, the indemnity shall be paid by the insurance company up to the liability limit of the mandatory vehicle insurance. The transferee shall be liable for indemnification of any shortfall.

Article 51: If an assembled motor vehicle or one that has reached the waste vehicle threshold is transferred by way of a sale, etc. and such vehicle is involved in a traffic accident that causes injury, the transferor and transferee shall bear joint and several liability.

Article 52: If a motor vehicle that is stolen, carjacked or forcibly taken is involved in a traffic accident that causes injury, the thief, carjacker or taker shall be liable for damages. If the insurance company advances a relief payment up to the liability limit of the mandatory vehicle insurance, it shall have the right to recover the same from the person who was responsible for the accident.

Article 53: If the driver of a motor vehicle flees the scene after the occurrence of a traffic accident and the motor vehicle is covered by mandatory insurance, the insurance company shall pay indemnities up to the liability limit of the mandatory vehicle insurance. If the motor vehicle has not been identified or is not covered by mandatory insurance and the expenses of the injured person who has sustained a physical injury or has died, such as emergency treatment expenses or funeral expenses need to be paid, they shall be advanced from the social assistance fund for road traffic accidents. Once the road traffic accident social assistance fund has advanced such expenses, the management organisation of such fund shall have the right to recover the same from the person who was responsible for the accident.

Part Seven: Liability for injury resulting from medical treatment

Article 54: If a patient suffers injury in the course of diagnosis or treatment and the medical institution and its medical personnel were at fault, the medical institution shall be liable for damages.

Article 55: Medical personnel shall, in the course of diagnosis or treatment, explain to the patient his/her medical condition and the treatment options. If an operation, special examination or special treatment needs to be carried out, the medical personnel shall explain to the patient the treatment risks, alternative treatments, etc. in a timely manner and obtain his/her written consent. If it would be inadvisable to explain the foregoing to the patient, the same shall be explained to a close family member and the written consent of such close family member shall be obtained.

If a medical worker fails to fulfil the obligations set forth in the preceding paragraph, resulting in the patient suffering injury, the medical institution shall be liable for damages.

Article 56: If, in an emergency situation, such as an attempt to save a patient in critical condition, etc., where the opinions of the patient or his/her close family members cannot be obtained, the relevant medical intervention may, subject to the consent of the person in charge of the medical institution or the authorised responsible person, be immediately carried out.

Article 57: If a medical worker in the course of diagnosis or treatment fails to fulfil his/her diagnosis or treatment obligations to a level commensurate with the state of medicine at the time, causing the patient to suffer injury, the medical institution shall be liable for damages.

Article 58: If a patient suffers injury as a result of any of the following circumstances, the medical institution shall be presumed to have been at fault:

(1) it violated a law, administrative regulations, a rule or other provisions on medical protocol;

(2) it conceals or refuses to provide case history materials that are relevant to a dispute; or

(3) it forges, alters or destroys case history materials.

Article 59: If a patient suffers injury due to a defect in a drug, sterilising agent, medical equipment or medical instrument or a transfusion of tainted blood, the patient may demand indemnification from the producer or the blood provider, or from the medical institution. If the patient demands indemnification from the medical institution, the medical institution shall have the right, after paying such indemnification, to recover the same from the liable producer or blood provider.

Article 60: If a patient suffers injury as a result of any of the following circumstances, the medical institution shall not be liable for damages:

(1) the patient or his/her close family members fail to co-operate with the medical institution in carrying out a diagnosis or treatment that complies with medical protocol;

(2) medical personnel have fulfilled their reasonable diagnostic and/or treatment obligations in an emergency situation, such as an attempt to save a patient in critical condition; or

(3) the patient was difficult to diagnose or treat due to the limits of medical knowledge at the time.

If, in the circumstance set forth in Item (1) of the preceding paragraph, the medical institution and its medical personnel were also at fault, they shall bear the corresponding damages.

Article 61: A medical institution and its medical personnel shall write up and duly keep in accordance with regulations case history materials such as admittance logs, physician's orders, test reports, operation and anesthetisation records, pathological information, nursing records and medical expenses.

If a patient asks to review or photocopy the case history materials specified in the preceding paragraph, the medical institution shall provide the same.

Article 62: A medical institution and its medical personnel shall maintain the privacy of their patients. They shall bear tort liability if a patient's private matters are divulged or his/her case history materials are made public without his/her consent, causing him/her to suffer injury.

Article 63: A medical institution and its medical personnel may not conduct unnecessary examination in breach of medical protocol.

Article 64: The lawful rights and interests of medical institutions and their medical personnel are protected by law. If a person upsets the medical order or disrupts the work or life of a medical worker, he/she/it shall bear legal liability in accordance with the law.

Part Eight: Liability for pollution of the environment

Article 65: If injury is caused due to pollution of the environment, the polluter shall bear tort liability.

Article 66: In a dispute arising due to pollution of the environment, the polluter shall bear the burden of proving the existence of the exculpatory or mitigating circumstances specified in law and the absence of causation between his/her/its act and the injury.

Article 67: If two or more polluters have polluted the environment, the extent of their respective liability shall be determined on the basis of factors such as the type of pollutant and the volume discharged.

Article 68: If the environment is polluted due to the fault of a third party, thereby causing injury, the injured person may demand indemnification from the polluter, or from the third party. The polluter shall have the right, after paying the indemnification, to recover the same from the third party.

Part Nine: Liability arising from high risk circumstances

Article 69: If a person engages in a high-risk operation, causing injury to another, he/she shall bear tort liability.

Article 70: If a nuclear accident occurs at a civilian nuclear facility, causing injury to another, the operator of such facility shall bear tort liability, unless such operator is able to show that the injury was caused by war or other such circumstance or by a willful act by the victim, in which case the operator shall not be liable.

Article 71: If a civilian aircraft causes injury to another, the operator of such aircraft shall bear tort liability, unless such operator is able to show that the injury was caused by a willful act of the victim, in which case the operator shall not be liable.

Article 72: If the possession or use of a flammable, explosive, highly toxic, radioactive or other such highly dangerous substance causes injury to another, the possessor or user shall bear tort liability, unless such possessor or user is able to show that the injury was caused by a willful act of the victim or force majeure, in which case the possessor or user shall not be liable. If the injured person was grossly at fault in the occurrence of the injury, the liability of the possessor or user may be reduced.

Article 73: If the engagement in an activity high overhead, an activity involving high voltage or an activity involving underground excavation or if the use of a high speed railway-based means of transport results in injury to another, the operator shall bear tort liability, unless such operator is able to show that the injury was caused by a willful act of the victim or force majeure, in which case the operator shall not be liable. If the injured person was at fault in the occurrence of the injury, the liability of the operator may be reduced.

Article 74: If the loss or abandonment of a highly dangerous substance results in injury to another, the owner shall bear tort liability. If the owner had placed the highly dangerous substance under the control of another, the person under whose control the substance was placed shall bear tort liability; if the owner was also at fault, he/she/it shall bear joint and several liability with the person under whose control the substance was placed.

Article 75: If the unlawful possession of a highly dangerous substance results in injury to another, the unlawful possessor shall bear tort liability. If the owner or the person under whose control the substance was placed is unable to show that he/she/it fulfilled his/her duty of extreme care so as to prevent unlawful possession by another, he/she/it shall bear joint and several liability with the unlawful possessor.

Article 76: If a person enters, without permission, an area where high risk activities are carried out or where highly dangerous substances are stored and suffers injury, and the manager has taken safety measures and fully discharged his/her/its obligation of giving warning, his/her liability may be reduced or exempted.

Article 77: If laws provide for a limit on damages for liability arising from high risk circumstances, such provisions shall apply.

Part Ten: Liability for injury caused by a kept animal

Article 78: If a kept animal causes injury to another, the keeper of the animal or the person under whose control the animal was placed shall bear tort liability, unless he/she/it can show that the injury was due to a willful act by or a gross fault on the part of the injured person, in which case his/her/its liability may be exempted or reduced.

Article 79: If, in violation of control provisions, safety measures are not taken in respect of an animal, resulting in injury to another, the keeper of the animal or the person under whose control the animal was placed shall bear tort liability.

Article 80: If a dangerous animal, such as a ferocious breed of dog, the keeping of which is prohibited, causes injury to another, the keeper of the animal or the person under whose control the animal was placed shall bear tort liability.

Article 81: If a zoo animal causes injury to another, the zoo shall bear tort liability, unless it can show that it fulfilled its management duties, in which case it shall not be liable.

Article 82: If an abandoned or escaped animal causes injury to another while it is abandoned or on the loose, the original keeper of the animal or the person under whose control the animal was placed shall bear tort liability.

Article 83: If, due to the fault of a third party, an animal is made to cause injury to another, the injured person may demand indemnification from the keeper of the animal or the person under whose control the animal was placed, or from the third party. The keeper of the animal or the person under whose control the animal was placed shall have the right, after paying indemnification, to recover the same from the third party.

Article 84: When keeping an animal, laws shall be complied with, social ethics shall be respected, and the lives of others may not be disrupted.

Part Eleven: Liability for injury caused by things

Article 85: If a building, structure or other facility or a thing placed thereon or suspended therefrom detaches itself therefrom or falls, causing injury to another, and the owner, manager or user is unable to show that he/she/it was not at fault, he/she/it shall bear tort liability. If there was another person liable, the owner, manager or user shall have the right, after paying indemnification, to recover the same from the other liable person.

Article 86: If a building, structure or other facility collapses, causing injury to another, the entity that had the same constructed and the contractor shall bear joint and several liability. If there was another person liable, the entity that had the same constructed and the contractor shall have the right, after paying indemnification, to recover the same from the other liable person.

If a building, structure or other facility collapses due to a reason attributable to another liable person, causing injury to another, the other liable person shall bear tort liability.

Article 87: If an object is thrown or falls from a building, causing injury to another, and the specific tortfeasor is impossible to determine, the user of the building who could have been the author of such injury shall pay compensation unless he/she is able to show that he/she was not the tortfeasor.

Article 88: If a pile of things collapses, causing injury to another, the person that piled the things shall bear tort liability if he/she is unable to show that he/she was not at fault.

Article 89: If the piling, dumping or scattering on a public road of a thing that impedes traffic results in injury to another, the relevant entity or individual shall bear tort liability.

Article 90: If a tree snaps, causing injury to another, the owner or manager of the tree shall bear tort liability if he/she/it is unable to show that he/she/it was not at fault.

Article 91: If a hole is dug or underground facilities are being repaired or installed in a place used by the public or on a road without a conspicuous sign being erected or safety measures taken, resulting in injury to another, the person carrying out the work shall bear tort liability.

If an underground facility, such as an inspection shaft, causes injury to another, the manager shall bear tort liability if he/she/it is unable to show that he/she/it fulfilled his/her/its management duties.

Part Twelve: Supplementary provisions

Article 92: This Law shall be effective as of July 1 2010.