China Passes Tort Law

Beijing passes a new law addressing liability in China, but does it go far enough?
2009-12-28
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Babies hospitalized after drinking tainted milk formula in China's central Gansu province, Sept. 10, 2008.
AFP

HONG KONG—China's parliament has passed legislation setting out liability, known as tort, including a clause granting equal compensation to rural and city dwellers in accidental death and injury claims.

The standing committee of the National People's Congress approved the "Tort Liability" law Saturday.

"The 92-provision law covers liabilities for a range of circumstances including traffic accidents, medical accidents, work-related injuries, pollution, harm caused by other people's pets and mental distress," the official Xinhua news agency reported.

The legislation, which takes effect in July, also covers infringements of personal rights, such as name, reputation, portrait and privacy, the agency said.

In theory, the legislation could open the floodgates to a torrent of compensation claims for everything from tainted baby milk powder and alleged shoddy construction standards in quake-hit school buildings to environmental pollution and mistreatment at the hands of officials.

But analysts said China's lack of judicial independence made this unlikely just yet.

"If they really do implement this law according to its provisions, then it will be a very good thing indeed," U.S.-based rights activist Liu Nianchun said.

"But if, in the process of implementing this law, conflict ensues, and instead of sticking to the law itself, they follow orders from higher-ranking departments, then it will become fairly meaningless," he said.

Li Xiaobing, director of the Western Pacific Institute at the University of Central Oklahoma, said China should undergo deep reforms to its legal system to solve the problem of implementation.

"The important thing about legal reform is the independence of the courts to make judgments in an objective manner," he said.

"One rather large problem is that ... the police are more powerful than the prosecution service or the judiciary," Liu said.

"Judicial officials shouldn't have anything to do with the government," he added. "The prosecution service and the judiciary should not serve the public security bureau."

Balancing compensation


One of the key changes trumpeted by state-run media at the weekend is equal treatment for rural residents, who have previously been awarded lower levels of compensation in accidental death and injury claims than city dwellers.

The issue was first brought to public attention when a 2007 court ruling in the western city of Chongqing awarded twice as much compensation to the relatives of an urban-registered accident victim as to the family of his rurally registered counterpart, even though both men were killed in the same car accident.

Li said the legislation could have had a still broader scope than it did.

"The law itself represents an advance [for China], but implementing it won't be easy to achieve."

He said the wording was especially vague when describing "rights."

"There are all kinds of rights: political rights, economic rights ... The term is very loose," Li said.

He said that one of the reasons that Chinese laws aren't specific is that they rely on a plethora of guidelines, rules and implementation procedures from various government departments and ministries at every level for their implementation.

Liu said that while human rights are the most fundamental of rights, they are not often talked about in public debate in China.

"They aren't talked about because they come into conflict with the heart of the Communist Party's rule: its power," he said.

Official media also pointed to potential uses of tort legislation amid an increasing number of privacy disputes across China, especially those involving "human flesh search engines," in which online vigilantes track down people they read about on the Internet.

Academics warned that the law could also be used to hamper the exposure of official wrongdoing using the Internet, and cautioned that greater education was needed about the difference between private rights and the public interest.

Original reporting in Mandarin by Yang Jiadai. Mandarin service director: Jennifer Chou. Translated and written for the Web in English by Luisetta Mudie. Edited by Joshua Lipes.