Is the property company responsible for hurting people in the vicious dog community? Expert interpretation

Is the property company responsible for the injuries in the vicious dog community?

Expert legal interpretation of the incident of a young child being bitten by a large dog in Sichuan

□ Zhao Li, reporter of this newspaper

□ Ding Yi, trainee reporter of this newspaper

On the morning of October 10, a large dog biting a girl occurred in a small area of Chongzhou City, Chengdu, Sichuan, causing heated discussions in the society.

Later that day, the Chongzhou police issued a notice: Deng and his daughter Tang were walking downstairs in the community when they encountered a black dog and a white dog, and the black dog attacked Tang and bit him. After diagnosis, Tang suffered multiple bites all over his body, a contusion in his right kidney, and a fracture of his right rib. After full treatment, wound debridement surgery has been completed, and vital signs are stable. The medical treatment expert group will improve the follow-up medical treatment measures according to the examination situation.

According to media reports, a doctor who participated in the consultation said: "The skin of a two-year-old child is delicate, and there are more than 20 bites on the entire right side, the longest of which is 8 centimeters, which really makes me can't bear to look at directly." ”

While people sympathize with girls and condemn vicious dogs for hurting people, they can't help but ask: Is the dog owner criminally responsible? If this incident occurred in a residential area, should the property company be jointly and severally liable? How are the dog regulations introduced in various places not just a formality... To this end, the reporter of "Rule of Law Daily" interviewed industry experts.

Focus one

What is the responsibility of the owner of the vicious dog

"From the surveillance video circulating online, the black dog was not leashed and the dog owner was not seen taking any safety measures. According to the relevant provisions of the Civil Code, the breeder or manager of the dog shall bear civil liability such as compensation for losses and elimination of danger. Tort liability is a civil liability, and the infringed party can require the dog owner to compensate for medical expenses, nutrition expenses, lost work expenses, emotional damage compensation, etc. Chang Sha, a lawyer at Kyoto Law Firm who has been exposed to such cases, said.

Article 1245 of the Civil Code stipulates that if an animal raised causes damage to others, the animal keeper or manager shall bear tort liability; However, if it can be proved that the damage was caused by the infringed party's intention or gross negligence, the liability may not be borne or mitigated.

"The meaning of this law is generally understood, that is, in the absence of evidence to prove that the victim intentionally or negligently provoked the dog, the dog owner is presumed to bear full responsibility, that is, the burden of proof of civil liability is shifted from the victim to the dog owner, and the legislative concept of tilting to protect the victim is very clear." Chang Sha explained.

According to local media reports, on the same day, the police of the police station came to the community to investigate. The police said that according to the current information, the dog involved is only a Rottweiler dog with an owner.

Public information shows that the RottWeiler is physically strong, fast-moving, imposing, aggressive, and very hostile to strangers. The Rottweiler attacks with strong impact, strong bite, and fierce tearing, and the trainer is often washed down and has a feeling of electric shock at the bite site. Because its breed personality is also relatively unstable, it needs to be professionally trained and managed.

Because of this, the reporter noticed that the Rottweiler is included in the catalog of prohibited dog breeds in Chongqing, Shanghai, Beijing, Guangzhou, Nanjing and other places. In Chengdu, where the incident occurred, the 22 types of strong dogs banned did not include Rottweilers.

However, according to the Regulations on the Administration of Dog Breeding in Chengdu, dog breeders should keep dogs on a leash or captivity and properly manage dogs; When a dog breeder takes the dog out of the house, the dog should be put into a dog cage, dog bag, or led by a person with full civil capacity; It is forbidden for individuals to keep strong dogs and large dogs.

Some netizens suggested that "dog owners should be held criminally responsible." On October 10, the Chongzhou Joint Investigation Working Group issued a circular, saying that the police had opened a case for investigation into the incident and taken criminal compulsory measures against the owner of the black Rottweiler dog in accordance with the law.

In this regard, Chang Sha analyzed that if the dog owner fails to fulfill his duty of care, resulting in dogs such as prohibited dogs or strong dogs injuring people, causing serious consequences, or constituting the following crimes and bearing criminal responsibility:

The first is the crime of endangering public safety by dangerous means. According to the provisions of the Criminal Law, whoever sets fire, floods, explodes, or releases poisonous, radioactive, infectious disease pathogens or other substances or uses other dangerous methods to cause serious injury or death or cause major losses to public or private property shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or the death penalty. Whoever negligently commits the crime mentioned in the preceding paragraph shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; where the circumstances are less serious, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.

If the dog owner knows, or should know, that he is raising a prohibited dog or a strong dog breed, the danger is high, and he has not fulfilled his duty of care, causing the dog to harm an unspecified public, and causing serious injury or death, he shall be punished as a crime of endangering public safety by dangerous methods. However, the application of the offence requires that the dog poses a danger to an unspecified public, so it may not constitute an offence if the dog is left unattended for a short period of time.

The second is the crime of intentional injury. According to the provisions of the Criminal Law, anyone who intentionally harms the body of another person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance. If the dog owner intentionally instructs the dog to bite others, and causes more than minor injuries, the breeder should be investigated for criminal liability for the crime of intentional injury. Where serious injuries are caused, the punishment shall be aggravated.

The third is the crime of causing serious bodily injury by negligence. According to the provisions of the Criminal Law, whoever negligently harms another person causing serious injury shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If the dog owner raises prohibited dogs or strong dogs, and fails to fulfill his duty of supervision, causing the dog to bite others and causing serious injury, the breeder can be investigated for criminal liability for the crime of causing serious injury by negligence.

"The first thing that needs to be clear is that punitive damages should be given to implement the first responsibility of the breeder of the injured dog." Yang Shangdong, associate professor at the School of Administrative Law of Southwest University of Political Science and Law, said that if a dog injury occurs, the relevant administrative departments should promptly punish and give play to the deterrent effect of the law. If a large dog or a strong dog injures a person, if it is suspected of violating the criminal law, the public security organ should intervene in the investigation and investigate the criminal responsibility of the breeder or manager; If it violates the order of public security administration, it shall be promptly punished in accordance with the Public Security Administration Punishment Law.

Focus two

Whether the property company is liable

After the incident, many people suggested that the property company should be responsible, "If it is a dog with an owner, then the property company has not fulfilled its responsibility to regulate the leash of the dog owner; If it's a wild dog, how did the property company put the wild dog into the community"?

The mother of the bitten girl also said in an interview with the media that the next step will be to hold the community property company and the dog owner accountable.

So, should the property company be held liable in this incident?

Wang Yegang, an associate professor at the Law School of the Central University of Finance and Economics, said that the property company has a security obligation for the personal safety of the residents of the community, and whether the property company should be responsible for this matter is mainly based on whether the property company has fulfilled its security obligations. According to the provisions of the Civil Code, the property service provider shall maintain the basic order in the property service area and take reasonable measures to protect the personal safety of the owner.

"If the injured dog has an owner, the property company has the obligation to persuade the regulation of dog breeding, but I am afraid it is difficult to require the property company to bear tort liability." The property company is not an administrative authority with law enforcement power, and its management right over the residents of the community comes from the property service contract, and there is no mandatory force on the regulation of dog owners. Therefore, as long as the property company fulfills its obligation to persuade and standardize, it generally does not need to bear tort liability. Wang Yegang said that it should be noted that according to the provisions of the Civil Code, property service providers should report to the relevant departments and assist in dealing with violations of laws and regulations in the property service area.

"If the injured dog is a stray dog and has no owner, then the property company will be liable for tort if it fails to fulfill its safety and security obligations. When the property staff discovers or the owner informs the existence of stray dogs in the community, preventive measures such as arrest and driving away should be taken to maintain the personal safety of the owner. If there is evidence to prove that the property company finds that the unowned forbidden dog has appeared in the community for a long time, but has not taken any measures, it shall bear the corresponding tort liability. Wang Yegang added.

Zhai Yehu, a professor at Capital University of Economics and Business, also said that if a large dog hurts people in the community, if the property company does not have gross negligence, does not deliberately fail to report, and does not take relevant assistance measures, the property company should not be liable. The property company does not have enforcement powers, and what it should do is give appropriate tips, such as the breeder walking the dog without a leash, taking the dog to the elevator during rush hour, etc. The responsibility of the property management company is to assist the relevant departments in carrying out dog management work, and if relevant abnormalities are found, they can report to the public security organ or urban management law enforcement department.

Bao Hua, director of the Property Management Legal Professional Committee of the Beijing Lawyers Association, told reporters that according to the Civil Code, if the property service provider of the project involved in the case has publicly made a service commitment that is beneficial to the owner on dog breeding matters, the commitment is an integral part of the property service contract and the property service provider should perform it; If it is not fully performed, it shall bear the liability for breach of contract.

"According to the Property Management Regulations, the property company shall provide corresponding services in accordance with the property service contract. If the property management company fails to perform the provisions of the property service contract, resulting in damage to the personal and property safety of the owner, it shall bear the corresponding legal responsibility according to law. Therefore, if a stray dog in the community hurts someone, the property company fails to fulfill its safety and security obligations and needs to bear the responsibility for fault. The victim can sue the property company for breach of contract or tort. Chang Sha said.

She pointed out that although the property company does not have the power to enforce the law and cannot take compulsory management measures against prohibited dogs with owners in the community, it does not mean that the property company cannot take relevant management measures. For example, you can register the dog ownership of the owner in the community, persuade the owner of the prohibited dog in violation of the law, and inform other owners of the feeding of the prohibited dog in the community. At the same time, for unattended dogs that appear in the community, the breeder should be contacted in time and other owners should be alerted. For unowned dogs, the obligation of expulsion and reminder should be undertaken, and the responsibility for safety and security should be fulfilled.

Focus three

How to implement dog regulations

In recent years, there have been frequent incidents of vicious dogs hurting people, what is the reason behind them?

Wang Yegang analyzed, first, some breeders do not abide by the rules of dog breeding; Second, the role of administrative law enforcement is not significant, and most people's first reaction to dogs hurting people is to ask for civil compensation, rather than report to the relevant administrative departments, which may lead to a low rate of administrative law enforcement initiation to a certain extent.

"Third, it is difficult for victims to prove and it is not easy to make claims. Civil litigation follows the principle of 'who claims the evidence'. When there are no cameras or when others pass by, it is difficult to prove the infringement, and if the keeper is not at the scene, it is difficult to establish his identity. Wang Yegang said that in practice, if there is no direct evidence, the victim can provide the court with indirect evidence such as police records and hospital cases, and the court will make a comprehensive judgment, and the indirect evidence will meet the standard of proof with a high degree of certainty, and the court will support the victim's claim for compensation.

The experts interviewed found that although local regulations or rules on dog breeding have been formulated in various places, there are a large number of illegal dog breeding behaviors in practice, so that "the law is difficult to blame the public". One of the reasons for this phenomenon is that the law enforcement departments for dog management are not unified or do not have a special authority for dog management, resulting in some law enforcement departments finding it difficult to even put in place specialized law enforcement personnel and financial guarantees. In addition, some law enforcement agencies are not willing to enforce the law and have insufficient motivation.

"Difficulty in implementation is the main reason why the problem of civilized dog breeding cannot be effectively solved." Chang Sha said that on the one hand, because people generally choose to walk dogs in the community, it is difficult for administrative staff to effectively supervise the situation of dog ownership; On the other hand, it is also due to the large number of dog owners, if you rely solely on the supervision of administrative organs, it is not only costly to enforce the law, but also difficult to continue supervision. Although the issue of dog breeding has been written into local regulations in many cities, it is still necessary to further clarify who will enforce it and which department citizens should complain to. At the same time, there is also the problem that the amount of penalties is too low in some areas, resulting in low costs of violations and insufficient deterrence.

It is worth noting that many experts interviewed believe that the legitimacy of dog ownership cannot be denied because of the frequent problems of dog ownership, nor can the significance of the existence of animal companions be stigmatized, but dog owners should maintain due dog literacy, such as complying with relevant laws and regulations, leashing dogs and wearing mouth masks for pet dogs.

"Cities are densely populated and public spaces are limited, so dogs must be kept in accordance with the law. All localities shall promptly revise the regulations or rules on the management of dog breeding, and make more detailed provisions, especially to strengthen the responsibilities of the competent departments for dog breeding behavior, establish effective supervision and law enforcement mechanisms, and change the current situation of 'heavy fees and light supervision'. Chang Sha said that in order to change this situation, we should first start by improving legislation, and refine the law enforcement process by clarifying the dog supervision department and its responsibilities to improve the efficiency and quality of law enforcement. At the same time, we should also pay attention to building a continuous supervision mechanism, normalize the supervision of dog breeding, and "grasp the typical" in the supervision process and play the warning role of typical cases; It is also necessary to "put a long line" and integrate supervision into citizens' daily lives.

In addition, the experts interviewed also suggested giving full play to the strength of grassroots communities and authorizing neighborhood committees, industry committees and property companies to assist law enforcement departments in managing dog breeding affairs.

"Since uncivilized dog breeding mainly occurs in the community, authorizing neighborhood committees, industry committees and property companies to assist law enforcement departments can greatly reduce the pressure on administrative agencies on law enforcement and improve the efficiency and quality of supervision." Property staff are usually the first to discover that owners have illegal dog breeding, but in practice, it is difficult to carry out timely and effective intervention and management due to the lack of enforcement powers. Chang Sha said that property companies, neighborhood committees, etc. can actively cooperate with the competent departments to implement the effect of law enforcement in the absence of law enforcement power, and at the same time, property companies should take the initiative to grasp the owner's dog breeding situation, organize the owner and cooperate with the neighborhood committee and industry committee to establish a self-discipline organization for civilized dog breeding, and encourage mutual supervision among owners.

Yang Shangdong suggested that administrative departments should improve the level and capacity of urban governance from the perspective of strengthening legal popularization education, prior supervision and informatization.

"From the practical situation, residents do not all know which dogs can and cannot be kept in ordinary families, and what regulations need to be followed to raise relevant pets, so it is necessary to strengthen legal publicity." Yang Shangdong said that the management mechanism should also be rationalized and communication and contacts between departments should be strengthened. Public security departments, urban management departments, and residential properties should establish a regular communication and coordination mechanism, and promptly deal with illegal acts. At the same time, straighten out the responsibility relationship between property companies and residents regarding pet breeding, and in urban communities, the management responsibility of dog ownership must be implemented to people and posts. In addition, to continuously improve the level of informatization, dog families should regularly register and report the behavior of raising dogs in a timely manner, and administrative departments should also update and share relevant information in a timely manner to enhance the pertinence and timeliness of supervision. (Rule of Law Daily)