The application of the presumption of fault is not to condone crime
death caused by falling objects from high altitude because no thrower was found, all residents in the building were sentenced to compensation by experts
● If throwing objects from the building or falling from the building causes damage to others, and it is difficult to determine the specific infringer, the building user who may have caused the damage shall be compensated unless it can be proved that he is not the infringer
● The application of the principle of presumption of fault will help promote the close connection between the community and the neighbor relationship, form the mutual help of the neighbor relationship, and the family-based and community-based group prevention and group governance mechanism for high-risk behaviors
● From the perspective of the application of law, not only should the exclusion of liability and proof of no fault be strictly reviewed, but also the on-site inspection, investigation experiment and other methods should be used to carry out dangerous behaviors for those responsible for the presumed fault included in the compensation scope. Possibility assessment to narrow the scope of application of the presumption of fault principle
□ Our reporter Han Dandong
□ Su Xinyu, an intern from our newspaper
Not long ago, the first case of death caused by falling objects in Suining City, Sichuan Province was sentenced. Because no parabolic object was found, the entire building was sentenced to compensation.
On November 11, 2016, Suining Youfang Middle Street, a fitness iron ball fell from the sky, and a baby girl under one year old in the stroller downstairs was hit to death.
After the incident, the local public security agency intervened in an investigation to verify all the housing conditions of the entire building where the iron ball landed, but failed to find the thrower.
The People’s Court of Chuanshan District of Suining City held that all owners of the building, including the operators on the ground floor facade, may become the perpetrators of the infringement. Except for those who live outside the house where no one lives, the rest of the households will be compensated 3000 per household. yuan.
So far, individual owners have appealed.
It is understood that the number of injuries caused by falling objects has been increasing.
Experimental data shows that dropping a 30-gram egg from the 8th floor will cause scalp bleeding, dropping the egg from the 18th floor will smash the skull, and dropping the egg from the 25th floor will cause death.
With regard to falling objects from high altitudes, how should citizens prevent them, and what responsibilities should those who throw objects from high altitude bear?
When the specific infringer cannot be determined, how to protect the rights and interests of the victims, and how to protect the interests of unrelated persons?
In this regard, a reporter from the Rule of Law Daily conducted an interview.
Deliberate high-altitude parabolic behavior
Need to bear criminal responsibility
What are the responsibilities for deliberately throwing objects from high altitude?
In this regard, Han Yingwei, a senior partner of Beijing Yingke Law Firm, introduced that according to the "Opinions of the Supreme People's Court on Properly Trial of Cases of Throwing Objects and Falling Objects from a Height", deliberately abandoning objects from a height has not caused serious consequences, but it is enough to endanger the public. If it is safe, it shall be convicted and punished in accordance with the crime of endangering public safety by dangerous methods as stipulated in Article 114 of the Criminal Law; if it causes serious injury or death or causes major losses to public or private property, it shall be in accordance with the first paragraph of Article 115 The stipulated penalties.
Anyone who commits the above acts in order to injure or kill a specific person shall be convicted and punished in accordance with the crime of intentional injury or intentional homicide.
According to Chen Yitian, a lawyer from Guangdong Guangxin Junda Law Firm, whether deliberately high-altitude throwing behavior constitutes a crime should be based on the perpetrator’s motives, the location of the throwing, the situation of the throwing, and the consequences, and a comprehensive consideration of the society of the behavior The degree of harm, accurately judge the nature of the behavior.
In addition to criminal liability, those who cause damage to the person or property of others must also be liable for incidental civil compensation.
So, what legal responsibilities should you bear for unintentional parabolic objects, such as falling objects?
Han Yingwei believes that the unintentional high-altitude throws that have not caused serious consequences will generally not be held criminally responsible, but they will be liable for civil tort compensation.
If an object falls from a height due to negligence, causing death or serious injury, and the provisions of Article 233 and Article 235 of the Criminal Law are met, the crime of negligence causing death or negligence causing serious injury shall be convicted and punished.
Anyone who violates relevant safety management regulations during production or operation, falls objects from a height, causes major casualties or causes other serious consequences, shall be convicted and punished for the crime of major liability accident in accordance with the provisions of the first paragraph of Article 134 of the Criminal Law.
Chen Tiantian said: “Due to negligence caused by falling objects from a high altitude and causing damage to others, the main legal liability is the owner, operator, manager, user, occupant, etc. of the building, generally including building owners, property management Companies, users, tenants and other units and individuals."
Regarding the circumstances under which the property should bear responsibility, Chen Yitian said that the responsibility of property companies is generally based on the principle of fault liability.
Generally speaking, real estate service companies fail to fulfill or incompletely fulfill the maintenance, maintenance, management and maintenance obligations stipulated in the real estate service contract, laws and regulations, and relevant industry norms, causing the building and its shelved and suspended objects to fall off or fall. If others damage, they shall bear tort liability.
Han Yingwei said that according to the Tort Liability Law, if a property service company as a manager cannot prove that it is not at fault, it should be liable.
The specific infringer is difficult to determine
Application of the presumption of fault principle
In this incident, because the parabolic object could not be found, the court ruled that all the owners of the building, except for those who live outside the house where no one is actually inhabited, compensated 3000 yuan per household. What is the basis?
According to Han Yingwei, the general rules of the Civil Law stipulate that civil entities engaged in civil activities shall follow the principle of fairness and reasonably determine the rights and obligations of all parties.
The Tort Liability Law also stipulates that if objects thrown from a building or objects falling from a building cause damage to others, and it is difficult to determine the specific infringer, except for those who can prove that they are not the infringer, the building user who may have caused the damage make up.
According to Chen Yitian, the judgment was mainly based on Article 87 of the Tort Liability Law.
In the forthcoming civil code, Article 1254 further improves the content, clearly stipulating that “throwing objects from buildings is prohibited”, and for throwing objects from buildings or falling from buildings If the goods cause damage to others, the infringer shall bear the tort liability in accordance with the law; if it is difficult to determine the specific infringer after investigation, unless it can be proved that he is not the infringer, the building user who may have caused the damage shall be compensated.
It should be emphasized that the legal provisions here use "compensation" rather than "compensation", which is mainly a manifestation of the application of the principle of presumption of fault.
This "compensation" is actually "compensation" because it is impossible to ascertain the subject of the fault after the damage has occurred, and the result of imputation by the principle of presumption of fault, that is, the presumption cannot prove that one has no fault but there are consequences that caused such harm The possibility that the responsible subject has the fault principle of civil tort liability.
In addition, Chen Yitian stated that if the owner disagrees with the judgment, he can appeal to the higher people's court within 15 days from the date of service of the judgment.
If you want to exempt yourself from liability for compensation, you must have substantive evidence to prove that there was no one in your home at the time of the accident, that is, provide an alibi, that the items that caused the damage have nothing to do with your home, and the items thrown from your home location cannot reach the damage result The place where it happened may not cause similar damage, etc.
Han Yingwei also stated that if the owner wants to appeal, he can appeal to the higher-level people's court that made the first instance judgment.
Strict application of evidence rules
Reasonably share responsibilities according to law
When it comes to the verdict of the incident, experts believe that it is not only the legal provisions, but also other considerations.
Chen Tiantian said that the verdict in this incident is not merely to condone crime.
In fact, it is a value choice based on fully protecting the rights and interests of the victim, fully making up for the loss of the victim, and sharing the responsibility reasonably when the infringer cannot be identified after the damage has occurred.
Especially when everyone has the possibility of becoming a victim of similar cases.
Therefore, this is undoubtedly an important manifestation of the law's effective protection of the lives and property of the people.
Regarding the application of presumption of fault liability, there is no question of excluding exempt persons as little as possible.
Who can be exempted from liability is the result of strict application of the rules of evidence, excluding reasonable doubt, and the criterion of exclusion is that one can prove that he has no fault.
In the application of this rule and the determination of the result, there should be no artificial selective exclusion, and the referee is required to be convinced that "all the persons responsible for this case cannot rule out the possibility of throwing harm Sex".
From another perspective, it is also possible to exclude as many exemptors as possible.
At the same time, Chen Yitian said that in terms of the limitations of scientific development and legislative technology, applying the principle of presumption of fault for similar cases is the best choice for a long period of time now and now.
In the application of the presumption of fault principle, the rights and feelings of both the victim and the person responsible for the judgment have been comprehensively considered.
Although while protecting the rights and interests of the victims to the utmost extent and making up for the losses of the victims, there is the problem that most innocent people are implicated and assumed responsibility. However, from the legislative level, it has been clearly stipulated that the responsibility is only "compensation". ", which is the result of the presumption of fault, rather than the "compensation" or even criminal liability based on direct and deliberate assumptions.
This is worthy of high recognition.
In addition, from the perspective of social governance, the application of the principle of presumption of fault can help promote the close connection between the community and the neighbor relationship, the formation of mutual help among neighbors, and the family-based and community-based approach to high-risk behavior groups. Anti-group governance mechanism.
From this perspective, it is also of progressive significance.
So how to minimize the responsible persons?
Chen Yitian suggested: “From the perspective of the application of law, not only should the evidence that exclude liability and prove no fault be strictly reviewed, but also should conduct on-site inspections, investigation experiments, and other methods to deal with those responsible for presumed faults included in the scope of compensation. The evaluation of the possibility of the implementation of dangerous acts in order to narrow the scope of application of the principle of presumption of fault."
High-altitude parabolic should be thoroughly investigated
Play a warning and preventive role
Regarding the high-altitude parabolic case, Han Yingwei bluntly stated that the high-altitude parabolic case itself is difficult to obtain evidence, which has brought huge challenges to the work of the public security organs.
For such cases where the parabolic cannot be found, firstly, the owners’ committee of the involved community organizes the owners to negotiate and resolve them; secondly, if the negotiation fails, it can be resolved through litigation to protect its own legal rights and interests.
Han Yingwei suggested that the high-altitude projectile case should be thoroughly investigated for warning and prevention.
First, it should be investigated by the public security organs in a timely manner.
Secondly, it depends on the community managers to improve the community management facilities and closely cooperate with the public security organs. Finally, such cases must be investigated and investigated by the people in order to improve the efficiency of solving cases.
Chen Tianyi believes that the thorough investigation and solving of this case and similar cases on the one hand can fully implement the basic principles of the criminal law's responsibilities and punishments, and maximize the crime prevention function of punishment; on the other hand, it can effectively establish typical cases. , To improve the positive publicity effect of the prevention of falling objects from height in society.
Chen Yitian said that the criminal investigation of this case or similar cases requires extensive visits and screening, and the workload is extremely huge.
For example, through door-to-door site surveys, to understand the possibility of carrying out parabolic behavior at heights; to understand the possibility of possession of fitness iron balls and throwing through inquiries to each family member; to verify through visits to family members, relatives, friends and units The authenticity of its statement; through the investigation of fitness iron ball manufacturers, understand its sales channels and targets; through the analysis of the main suspects’ consumption behavior and shopping habits, understand the possibility of buying fitness iron balls; through online shopping Screening of records to understand the possibility of purchasing fitness equipment or even fitness iron balls; through investigation experiments to determine the possibility of crimes committed by residents of each household, and so on.
As for how to prevent and prevent throwing objects and falling objects at height, Han Yingwei suggested that, first, we must strengthen the publicity of the hazards of throwing objects at heights, improve the legal awareness and overall quality of residents in the community, develop good living habits, timely clean up windowsill objects, and prevent falling objects at height Danger; Second, strengthen supervision and management, severely punish parabolic behavior at heights, hold relevant owners, users, and managers accountable in accordance with the law, and improve channels for public feedback, complaints, and reports.
Third, raise awareness of self-protection, pay attention to the characteristics of buildings, stay away from high-risk and old buildings with high-altitude falling objects, and report to relevant departments in time.
Chen Yitian said that preventing high-altitude projectiles and falling objects is a problem that requires group prevention and treatment, but overall the key lies in the individual.
For individuals, on the one hand, we must try our best to avoid the risk of being a victim of falling objects; on the other hand, we must also prevent the danger of becoming a perpetrator and infringing on the personal and property safety of others.
At the same time, remind family, friends, and neighbors to pay attention to or avoid the first two risks.
Especially for building owners, managers, and users, it is necessary to strengthen risk awareness, strengthen the maintenance, maintenance, and reasonable arrangements of buildings, and fully prevent the risk of structures and shelved objects falling off and hurting people.
Once the owner, manager, and user of the building have the awareness of preventing the risk of falling objects from height, the unit composed of individuals can naturally also prevent the risk of falling objects from height to the greatest extent.