Professor Sun Xianzhong, a member of the Constitution and Law Committee of the National People’s Congress, a member of the CASS Academic Committee and a research fellow at CASS Law Institute, recently put forward two deliberative opinions on the Draft Tort Liability Part of the Civil Code, which was submitted to the Twelfth Session of the Standing Committee of the Thirteenth National People’s Congress for deliberation on August 22, 2019.

Professor Sun’s deliberative opinions concern the following two provisions in the draft law:

1. Article 954 bis (self assistance): Professor Sun believes that this article has obvious defects. The purpose of self assistance is to allow a right holder to help himself in circumstances where his lawful rights or interests are infringed upon, and, because of the urgency of the situation, is unable get the assistance from the state in a timely manner, so as to stop the infringement and protect his rights and interests. However, this article does not directly authorize the victim to take action to put to an end to the infringement, but authorizes the victim “to seize the property of the infringer to the extent necessary”. This formulation is obviously inappropriate: it turns a lawful act into a potential act of tort. It is unable to answer the following questions: if the infringer has not caused any property loss to the victim, it is justifiable for the victim to seize the property of the infringer? How the victim is supposed to seize the property of the infringer? Will the seizure of the infringer’s property sufficient to compensate for the infringements of the victim’s rights and interests? Therefore, Professor Sun suggests that this article be revised so that the right to self-assistance be clearly directed to the termination of the act of infringement: namely it must first authorize the victim to take action to stop the infringement. Under this precondition, it may allow the victim to seize the infringer’s property to extent necessary in cases where the act of infringement has resulted in the personal or property damages to the victim.

2. Article 968 Paragraph 2, which provides that: “If, during the period of providing a labor service, the service provider suffers damages resulting from the act of a third party, he has the right to request that the third party assume tort liability; he also has the right to request that the party receiving the labor service assume tort liability. In the latter case, the party receiving the service shall be entitled to be compensated by the third party after assuming the tort liability.” This provision is apparently inappropriate. Firstly, the legal definition of “the period of rendering labor service” is unclear; secondly, this provision is unclear as to the nature of the liability of the service receiver: is it a liability of compensation for damages or an equitable liability? And thirdly, although the provision provides the remedy of “to be compensated by the third party after assuming the tort liability”, such remedy has many problems in terms of the burden and the possibility of its realization, and may lead to the escape of liability by the real infringer. Therefore, Professor Sun believes that this provision is unreasonable and should be deleted.