Welcome to "Talking Governance" to discuss the topics of communication management and law.
This year's Spring Festival, for some people, the happiest thing is to set off fireworks.
Prohibition becomes restriction, there are freedoms and restrictions.
In recent years, many places have banned the use of fireworks and firecrackers in urban areas in the form of laws, regulations or policies. Although there has been opposition to this regulation, after years of implementation, the public has gradually adapted to it.
Just before the Spring Festival this year, the Standing Committee of the National People's Congress launched a legality review, pointing out that the Constitution and laws do not prohibit citizens from setting off fireworks and firecrackers, nor do they authorize local governments to legislate to prohibit them, so the regulations prohibiting fireworks and firecrackers in various places are beyond the scope of the provisions of the superior law and violate the principle of "everything that is not prohibited by law" and should be repealed or amended. In this context, fireworks and firecrackers have been changed from a ban to a conditional permit, that is, they can be set off freely at a specified time and in a specified area.
So this year's Spring Festival, the sound of firecrackers in urban and rural areas one after another, endlessly, fireworks blooming in the sky and colored lights on the ground, adding a gorgeous and brilliant scenery to the city. Many people release their pent-up desires for many years and "retaliate" through the addiction of firing guns.
Because of this, the restrictions on the time and area of the fireworks have been easily broken in practice. The resulting noise and air pollution have aroused the disgust of many people.
Rather than discuss the question of whether fireworks should be set off, we would like to remind you of another, more practical legal issue: setting off fireworks is a highly dangerous act, and if it causes damage to the person or property of another person, whether the person who set it off is at fault or not, you will be liable for compensation.
Case: Causing a neighbor's eye injury due to fireworks, 65% of the medical expenses will be compensated.
Let's look at a real-world example. On a festive night, Wang set off fireworks at the door of his shop, attracting crowds of onlookers. When neighbor Li looked up**, he unexpectedly fell on his face after the fireworks exploded, causing bleeding in his right eye on the spot. The hospital's diagnosis showed that Li had a conjunctival laceration and blunt trauma to the eyeball. Although the hospital **, Li's injury continued to deteriorate, eventually leading to retinal detachment, vitreous hemorrhage, proliferative vitreoretinopathy, eye contusion, retinal rupture and other serious injuries, with a total of 29,061 medical expenses83 yuan. After evaluation, Li was found to have an eighth-grade disability. Li demanded that Wang compensate for the loss, but after refusing, he sued the court.
After trial, the court held that setting off fireworks and firecrackers was a highly dangerous act, and Wang was the perpetrator of a highly dangerous act by setting off fireworks at the door of his shop. Li's injury to his right eye has a direct causal relationship with Wang's fireworks, so Wang should be liable for all losses caused by Li's injury to his right eye. At the same time, Li, as an adult, should have sufficient cognitive ability and self-protection ability for dangerous environments, and should strengthen self-protection in highly dangerous environments, and he himself was also grossly negligent for the occurrence of damage results, so he should bear corresponding responsibility. To sum up, the court ruled that Wang should bear 65% of Li's losses, and Li should bear 35% of the liability.
Statement: Highly Dangerous Conduct and No-Fault Liability.
In the above case, two legal concepts are worth noting: highly dangerous conduct, no-fault liability.
In Chapter VIII of the Tort Liability Section, China's Civil Code stipulates the liability for highly dangerous acts. According to the relevant provisions of the Civil Code, highly dangerous behaviors include:
The operation of a civilian nuclear facility, or the transport of nuclear material into or out of a nuclear facility. It mainly refers to the operation of nuclear power plants.
Civil aircraft operations. Including civil aircraft, drones, balloons, etc.
Engage in high-altitude, high-pressure, underground excavation activities, or use high-speed rail transportation. Including the use of tower cranes, high-voltage power transmission, construction of subways or tunnels, high-speed rail, highway operations, etc.
Possession or use of flammable, explosive, highly toxic, highly radioactive, highly corrosive, highly pathogenic and other highly dangerous substances;
loss or abandonment of the aforesaid highly dangerous items;
Illegal possession of the aforementioned highly dangerous items.
Since fireworks are flammable and explosive, they can be classified as highly dangerous substances, so setting off fireworks is a highly dangerous behavior.
With regard to liability for highly dangerous acts, Article 1236 of the Civil Code stipulates that: "A person who engages in highly dangerous operations and causes damage to others shall bear tort liability." This provision may seem simple, but it is actually quite unusual, because according to this provision, there is no-fault liability for damage caused by highly dangerous acts.
What is no-fault liability?
Under normal circumstances, whether an act causes damage to others and whether the actor should bear tort liability depends on four elements: the tort, the result of the damage, the causal relationship between the tort and the result of the damage, and the fault of the actor. That is to say, if a person's act infringes upon the rights and interests of others and causes damage as a result, then whether the infringer should be liable for compensation depends on whether he is at fault in the act. If there is a fault, there is responsibility; Conversely, if there is no fault, he is not liable for compensation even if his actions cause damage to others. This is known in civil law as the "principle of fault liability". The most typical examples are justifiable defense and emergency avoidance, although these two types of acts will cause damage to others, but because the actor is not subjectively at fault, they do not need to bear the liability for compensation.
However, in addition to the principle of fault liability, the Civil Code also stipulates no-fault liability. The so-called no-fault liability means that in some special circumstances, as long as the actor infringes on the rights and interests of others and causes damage as a result, the infringer should bear the liability for compensation, and it is irrelevant whether the actor is subjectively at fault. In short, no-fault liability means liability without fault.
Obviously, no-fault liability is somewhat indiscriminate for the perpetrator, and does not conform to the principle of equitable responsibility, but is a special kind of inclined protection for the victim. According to the Civil Code and other legal provisions, the common situations in which the perpetrator bears no-fault liability are: tort caused by polluting the environment and damaging the ecology, tort caused by highly dangerous acts, tort caused by a fierce dog that is prohibited from being raised, and a traffic accident between a motor vehicle and a non-motor vehicle driver or pedestrian resulting in personal injury to the latter, etc.
No-fault liability does not necessarily mean taking full responsibility.
In the above case, Wang assumed no-fault liability for Li's eye disability. Even if Wang set off fireworks at a time and place permitted by law, he also reminded the onlookers to pay attention to safety, and he was not at fault and could not be exempted from liability for compensation.
However, the law also stipulates that in some cases of no-fault liability, if the victim is also liable for the occurrence of the damage, then the tortfeasor's liability for compensation can be reduced. If the damage was caused intentionally by the victim or by force majeure, then the infringer may not be liable.
Article 1239 of the Civil Code stipulates that "if a person takes possession of or uses highly dangerous substances such as flammable, explosive, highly toxic, highly radioactive, highly corrosive, or highly pathogenic to cause damage to others, the occupier or user shall bear tort liability; However, if it can be proved that the damage was caused intentionally or by force majeure of the victim, no liability shall be imposed. Where the infringed party is grossly negligent in the occurrence of the damage, the liability of the possessor or user may be reduced. The court's judgment that Li bears 35% responsibility for his eye disability is based on the provisions of this article.
Therefore, when setting off fireworks, we must fulfill a high degree of safety care to avoid causing damage to others, and fireworks people should also pay attention to protecting their own safety. For children, on the one hand, fireworks should not be set off alone, and on the other hand, they should be accompanied by **fireworks when they are fired.
This also echoes the adage: "With any freedom comes a certain responsibility." ”