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Torts Extend the Long Arm of the Law

By staff reporter ZHAO DAN

The Tort Law of the People's Republic of China will be formally implemented on July 1, 2010. For the aspirations of the judiciary, the law proves particularly timely. Statistics show that the number of cases relating to ownership or rights infringement is increasing year by year, from over 980,000 in 2007 to 1.03 million in 2008. The Tort Law is also a legal breakthrough in terms of Chinese legislation. It clarifies legal status for situations that used to be vague, ill-defined or neglected, like compensation for mental impairment, unified standards on death compensation, liability for child abuse by caregivers, online hacking or infringement, and for the first time, punitive compensation for losses caused by substandard products.

Right Relief Replaces Impunity

The year of 2008 saw a tragedy in food safety. Hundreds of infants were found to suffer from kidney stones, some of whom died. The culprit was Sanlu; their powdered infant formula contained the chemical additive melamine. Prior to this outrage, incidents of tainted food had arisen several years previously: Sudan Red, a manufactured dye, was found in chilli powder and duck eggs, the same with large amounts of pesticide residue in leeks, and the feed stuff additive clenbuterol in pork.

Why did crimes related to food safety happen again and again despite strict laws and regulations? Legal experts have identified loopholes in existing legal protections. Under the current law, if consumers use a substandard product resulting in physical injury or property damage, the manufacturers or sellers are only required to compensate customers for direct losses. The manufacturers will be charged only if serious damage has occurred and the guilty have had the option to pay a modest fine to the local management bureau. Tian Wenhua, president of Sanlu Group, was subjected to severe legal penalties, but other manufacturers of bad or toxic products escaped judicial remedy because the consequences were not deemed significant. The deficits in the legal system undoubtedly shield and abet shady manufacturers, so that substandard products make their way everywhere with seeming impunity.

For a time, there is a strong voice appealing for punitive damages to be levied on those producing substandard products, even so severe as to bring a business to ruin, as a way to warn other producers and set market standards. Against such a background, the Tort Law was passed, and punitive compensation written in. Punitive compensation will make it possible to compensate wronged consumers for amounts that exceed the superficial loss that those consumers bear. Increasing the risks of producing substandard products and limiting the survival chances for the manufacturers are deterrents that are expected to force improved product quality standards on the market.

In response, Professor Li Renyu, civil and commercial law expert and dean of the Law School in Beijing Technology and Business University, commented that the Tort Law is a right relief law, which mainly means to compensate the interests of injured parties. This provision of punitive compensation is recognized as a legislative breakthrough in China.

Medical Institutions Fall Under the Tort

On January 23, 2008, Liu Lili, a junior in Northeast Agricultural University, was taken to the People’s Hospital of Jidong County, Heilongjiang Province, with a runny nose and fever. Her situation deteriorated, but the attending doctor misdiagnosed her condition; the treatment was delayed and this resulted in her death. Preparing the case, the plaintiff faced a dilemma. The hospital refused to provide evidence taken in Pathology – a tissue sample taken from the patient – so it was impossible to make a legal judgment without the analysis to base it on. At the same time, it was clear that Liu’s medical record had been altered. After a few twists and turns, the plaintiff finally obtained the tissue section analysis and her other medical records by order of the court.

Cases like this are on the increase. However, the existing law is not defined on disputes between patients and medical institutions, making it difficult to find legal models to resolve cases. “There are a lot of medical malpractice suits, particularly in medical cosmetology,” said Yang Bing, the lawyer who represents Liu’s mother. “In these cases, it’s difficult to obtain evidence, as the hospital usually refuses to provide documents that the patients’ family have signed; some written evidence is even forged.”

“The current disputes also reflect that over-treatment is common,” Professor Li Renyu pointed out, “regardless whether patients have had examinations, some hospitals require them to do the same ones again on the pretext that other hospitals’ test results ‘are not credible’ there. Patients’ financial burdens increase along with their physical pain. Furthermore, doctors tend to prescribe the most high-priced drugs so that their commissions are equally elevated.”

The Tort Law will safeguard the rights of patients and restrict such acts by medical institutions. It stipulates that medical institutions are obliged to provide medical information related to disputes, and medical institutions and staff should not violate diagnostic and therapeutic criteria by forcing patients to take unnecessary tests or buy high-priced medicines.

End to Death Compensation Imbalances

On December 15, 2005, three teenage girls were killed in a car crash in Chongqing while riding a tricycle. Unexpectedly, the compensation for two of the three was deemed to be over RMB 200,000, as they lived in the urban area of the city, while the family of the third one got only one fourth of that amount because she lived in a rural area. Does life have a different value depending on where you live, many asked.

The reason for the disparity was rooted in the existing legal provisions, which stipulate that compensation for those surviving the deceased in a rural area should be calculated according to the average income of that rural area; while for urban residents, compensation should be calculated according to the average urban income. As rural living standards are much lower than urban ones, awards vary across quite a range. The case stimulated in-depth debate among legal experts and the public alike.

Lives don’t have different price tags any longer. Currently, infringement cases involving workplace hazards, incidents of medical malpractice, and especially fatal traffic accidents, can involve death compensation. The Tort Law stipulates that if a violation results in multiple deaths, the compensation should be the same for every victim. This reflects the equal value of lives and rights.

Controlling the “Human Flesh Search”

On December 29, 2007, Jiang Yan jumped to her death off a multi-storey building. The 31-year-old whitecollar worker wrote in her blog that the reason for her suicide was her husband’s infidelity. She also posted his photo and one of the adulterous third party. After she passed away, her blog entries were copied and pasted on many network forums, generating considerable buzz. It didn’t take long for netizens to dig up background information on the husband, Mr. Wang, and his lover. Soon Mr. Wang and the accused third party were suspended by their companies. The home address of Mr. Wang’s parents was subsequently revealed and defamatory posters appeared around their house, compromising their peace and privacy.

Before this incident, several photos depicting the maltreatment of a cat were published on the Internet, stimulating netizens’ anger. According to the number of threads, at least 100,000 Internet users mobilized to trace the source of the horror. This kind of search, where tens of thousands of people self-organize to turn up information on some specific person, is called a “human flesh search.”

Unrestrained searches of this type will inevitably involve incursions into privacy, like the use of photos and personal information. After being published on the Internet, persons involved are usually adversely affected. The current law doesn’t explicitly address the responsibility for limiting a “human flesh search,” so it’s hard to protect the rights of those hunted down in cyberspace.

The new law does, however, clearly define that network users or service providers will be held responsible for any infringement of civil rights and interests on the Internet, if their actions cause inconvenience or mental injury to victims. Now they will assume tort responsibility and may have to provide an apology, compensate for the victim’s loss or rehabilitation costs, or take measures to eliminate any negative impacts. Even in cyberspace the long arm of the law is extending its reach.

VOL.59 NO.12 December 2010 Advertise on Site Contact Us