Rule of Law｜Sometimes deaths and injuries from children thrown at high altitude: who compensates and whether the property is responsible
A 6-year-old boy from a community in Sanmenxia, Henan, dropped tiles from the 25th floor, and a 5-year-old boy was injured after dying.
On May 30, the high-altitude parabolic incident reported by Peng Mei News (www.thepaper.cn) caused public concern. At present, the police has filed a criminal case. Unlike many previous high-altitude parabolic cases where it is difficult to find a specific infringer, in this case the infringer is clear, but it is a minor who does not have criminal or civil liability.
In judicial practice, who will compensate for the damage caused in this matter? Zhao Liangshan, a senior partner of Shaanxi Hengda Law Firm and a well-known public welfare lawyer, and Yan Chuang, a partner of Beijing Zhongwen Law Firm, all believe that in this infringement case, the boy has not reached the age of criminal responsibility as prescribed in the Criminal Law It is also a person with no capacity for civil conduct who cannot be held criminally responsible, and the liability for compensation for tort damages caused by it should be borne by his guardian.
According to the police report, the boy was throwing the skirting tiles off the corridor from the ventilation window on the 25th floor. In this incident, is the property responsible? Zhao Liangshan believes that the property is only responsible for the damage caused by the shedding and falling of the building and its shelving and hanging objects. Yan Chuang believes that in the end, the court will determine the relevant evidence and determine whether the property needs to be held responsible.
Children's parabolic injuries from time to time
On the way to the grandma's house with her mother, Miao Moumou, 5 years old and 2 months old, was hit in the head by a piece of heavenly tiles and immediately fell to the ground. Unfortunately, after being sent to the hospital for rescue, at 16:20 on May 29, Miao Moumou died after rescue failed.
The 6-year-old boy Zhao Moumou dropped the tiles from upstairs. According to a preliminary investigation by the Hubin Branch of Sanmenxia Public Security Bureau in Henan Province, Zhao Moumou threw off the baseboard tiles in the corridor from the ventilation window on the 25th floor.
This matter has once again aroused public attention on the topic of preventing high-altitude parabolism.
Surging News found that in recent years, there have been many similar incidents in which the perpetrators are children.
On March 4, 2016, in a kindergarten in Fengxi District, Chaozhou City, Guangdong Province, a 4-year-old boy Xiaojun (pseudonym) threw a small piece of concrete from the upper floor, hitting a 3-year-old boy Xiaocheng (pseudonym) on his head. Judicial appraisal opinions show that Xiaocheng’s degree of disability is rated as Grade 9 disability.
On July 2nd, 2019, a 10-year-old boy was thrown into the sky by a 10-year-old boy in Taiciqiao International City District, Nanming, Guizhou. The middle-aged woman, Yuan Moumou, was hit in the head and died after rescue.
On June 20, 2019, according to @南京鼓楼警notice, at 15 o'clock on June 19, a girl was unfortunately hit by an 8-year-old boy upstairs at Times Square in No. 8 Dongbao Road, Gulou District, Nanjing In the meantime, the injured girl was rushed to hospital for treatment.
In January of this year, Hainan High Court published the top ten typical cases in 2019. In one case, Yuan Moumou, a 9-year-old boy from a tenant in a community in Qiongzhong Bayling Town, threw three boxes of carton-packed milk from the 21st floor, and the second box hit the head of the seventy-year-old Ji Ji. After the appraisal, Ji Mou’s injury constituted a level 10 disability, and the court ruled that the boy’s guardian compensate Ji Ji for various losses totaling more than 70,000 yuan.
Surging News found through the search of the Chinese Judgment Documents Network that since 2013, there have been hundreds of cases related to high-altitude parabolic objects and high-altitude falling objects every year, and the trend is increasing year by year.
In November 2019, the Supreme People’s Court issued the "Opinions on the Proper Trial of High-altitude Parabolic and Falling Cases" (hereinafter referred to as "Opinions"), which clearly stated that for deliberate high-altitude parabolic objects, the use of dangerous methods to endanger public safety, For the crime of intentional injury or intentional homicide, he shall be given a heavier punishment in specific circumstances; if a falling object constitutes a crime, he shall also be punished in accordance with the law.
"People's courts should make the prevention and punishment of high-altitude parabolic and falling objects an important task at present and for some time to come." The Opinions also pointed out.
Lawyer: The boy does not bear criminal responsibility, his family should compensate
Returning to this case, the 6-year-old boy Zhao Moumou who dropped the tiles from a height is a minor. In the specific judicial practice, how can the injured party get compensation?
Yan Chuang, a partner attorney at Beijing Zhongwen Law Firm, believes that a 6-year-old boy who can throw a parabolic high altitude is an infringer, but he is a person with no civil capacity, and the infringement damages caused by it should be his guardian. bear. Boys have not reached the age of criminal responsibility as stipulated in the Criminal Law and cannot be held criminally responsible.
Yan Chuang believes that the parents of the 6-year-old boy did not perform their educational and supervisory duties as guardians. The public security authorities should criticize their parents for education and make them aware of the seriousness of the problem and avoid similar situations from happening again.
Zhao Liangshan, a senior partner of Shaanxi Hengda Law Firm and a well-known public welfare lawyer, also believes that in this case, a parabolic thrower was only 6 years old. According to the provisions of Article 17 of the Criminal Law on the age of criminal responsibility, under the age of 14 years, he will not be criminally responsible. But his parents or guardians can be ordered to discipline.
Although the boy Zhao Moumou does not bear criminal responsibility, according to the provisions of Article 133 of the General Rules of Civil Law: "If a person without civil capacity and a person with limited civil capacity causes damage to others, the guardian shall bear civil liability. "The legal guardian of the boy who caused the accident needs to pay funeral expenses and death compensation to a family member of the deceased.
Should the property be held accountable?
So in this case in Henan, Zhao Moumou threw "the skirting tiles in the corridor" from the ventilation window on the 25th floor and hit Miao Moumou. Should the property be held responsible for the case?
The civil liability for parabolic objects and falling objects is clearly stipulated in Articles 85, 86 and 87 of the Tort Liability Law. Article 85 stipulates: "If buildings, structures or other facilities and their shelving and hanging objects fall off or fall and cause damage to others, and the owner, manager or user cannot prove that he is not at fault, he shall bear tort liability. After the administrator or user compensates, if there are other responsible persons, they have the right to recover from the other responsible persons."
Surging News noted that on May 28th, the day before the case occurred, the Third Session of the 13th National People's Congress voted to pass the "Civil Code", and its infringement liability stipulation further stipulated the legal responsibility of high-altitude parabolic objects and clarified the property management agency It is necessary to fulfill the obligation of prevention, and the public security and other agencies have the obligation to investigate.
In the aforementioned high-altitude parabolic case in Chaozhou, Guangdong, the second trial of the Chaozhou Intermediate People's Court believed that when the accident occurred, the victim Xiaocheng and the parabolic junior were minors under the age of six, and their recognition and cognitive abilities were very limited. As a person with no capacity for civil conduct, kindergarten deserves strict and thorough education, management and protection obligations. Kindergartens fail to improve and eliminate potential safety hazards in time for the places and facilities provided for children’s activities, and fail to fulfill their proper management and protection responsibilities in the event of accidents.
In the end, the kindergarten involved was sentenced to bear 90% of the responsibility, with a total compensation of more than 344,000 yuan. The remaining 10% of the responsibility was borne by Xiao Jun and his parents.
Does the kindergarten high-altitude parabolic case have reference significance to this case that occurred in the community?
Yan Chuang said that in the case of high altitude parabolic cases in kindergartens, the court made a judgment mainly based on Article 38 of the Tort Liability Law, "Persons with no civil capacity suffered physical damage while studying and living in kindergartens, schools or other educational institutions. If the kindergarten, school or other educational institution should bear the responsibility, but it can prove that the education and management responsibilities are fulfilled, it will not bear the responsibility." The court found that the kindergarten was at fault, that is, the kindergarten could not prove that it had established a safety management system and performed safety Guarantee obligations, etc.
But kindergartens, schools and property management are not similar institutions.
Yan Chuang believes that if it is a falling object from high altitude, such as “tiles falling off”, it is determined that it belongs to the management area of the property, and the property has not been repaired and strengthened in time, which belongs to the management responsibility of the property. In the case of a 6-year-old boy throwing tiles from the 25th floor, the police initially investigated Zhao Mou. Someone threw the "skirting tiles off the corridor" from the ventilation window on the 25th floor. The evidence is determined by the court and a comprehensive judgment is made as to whether the property is liable.
Zhao Liangshan analyzed that the property company assumes responsibility for the premise, that is, the damage result is directly caused by the shedding and falling of the building and its shelving and hanging objects.
In this case, the death of Miao Moumou, a 5-year-old boy, was not directly caused by the falling or falling of the tiles. The fallen tiles were just a tool for the attack by Zhao Moumou, a 6-year-old boy. There is no direct cause-and-effect relationship between falling off and falling. It is only because of Zhao Moumou's throwing of tiles and Miao Moumou's death. Therefore, Zhao Moumou bears responsibility for the death of Miao Moumou, the property company has no fault, and does not need to bear responsibility.
Surging News reporter Zhao Siwei