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Art. 132 of the former General Principles of Civil Law provided: “If none of the parties is at fault for the occurrence of harm, they may share civil liability according to the actual circumstances.” Art. 24 of the former Tort Liability Law provided: “If neither the injured person nor the actor is at fault for the occurrence of harm, they may share loss according to the actual circumstances.” There were two changes in wording of substantial significance: “The parties” replaced by “the injured person and the actor” and “civil liability” shared by the parties replaced by “loss”. The traditional tort law doctrine that treated these two articles as general rules of liability based on fairness usually gave them negative appraisal, because when studying these two articles, it focused “unilaterally” on the act of causing harm, leading naturally to doubts about their justification. Art. 962 of the Book of Tort Liability of Civil Code of China (the First Officially Deliberated Draft) provided: “If neither the injured person nor the actor is at fault for the occurrence of harm, they may share loss according to the provisions of the law.” It replaced the phrase “may…according to the actual situations” with “may…according to the provisions of the law,” effectively restricting the judge’s discretion to determine that “they may share loss”. This provision was kept in both the Book of Tort Liability of Civil Code of China (the Second Officially Deliberated Draft) and the Book of Tort Liability of Civil Code of China (the Third Officially Deliberated Draft). However, in the Draft of Civil Code of China, Art. 1186 of provided: “If neither the injured person nor the actor is at fault for the occurrence of harm, the two parties share loss according to the provisions of the law.” With “…may share loss according to the provisions of the law” replaced by “…share loss according to the provisions of the law”, the former, authorizing the court some autonomous power to rule, had actually transformed into a “referring clause”with more strict limitation. Such way of expression is finally fixed in Art. 1186 of Civil Code.

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General Theories on Liability of Apportionment of Loss Based on Fairness for Unilateral Accident in Concerted Danger

  • 章节

  • 发表日期：

    2026年

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  • Zhu Wang

摘要

Art. 132 of the former General Principles of Civil Law provided: “If none of the parties is at fault for the occurrence of harm, they may share civil liability according to the actual circumstances.” Art. 24 of the former Tort Liability Law provided: “If neither the injured person nor the actor is at fault for the occurrence of harm, they may share loss according to the actual circumstances.” There were two changes in wording of substantial significance: “The parties” replaced by “the injured person and the actor” and “civil liability” shared by the parties replaced by “loss”. The traditional tort law doctrine that treated these two articles as general rules of liability based on fairness usually gave them negative appraisal, because when studying these two articles, it focused “unilaterally” on the act of causing harm, leading naturally to doubts about their justification. Art. 962 of the Book of Tort Liability of Civil Code of China (the First Officially Deliberated Draft) provided: “If neither the injured person nor the actor is at fault for the occurrence of harm, they may share loss according to the provisions of the law.” It replaced the phrase “may…according to the actual situations” with “may…according to the provisions of the law,” effectively restricting the judge’s discretion to determine that “they may share loss”. This provision was kept in both the Book of Tort Liability of Civil Code of China (the Second Officially Deliberated Draft) and the Book of Tort Liability of Civil Code of China (the Third Officially Deliberated Draft). However, in the Draft of Civil Code of China, Art. 1186 of provided: “If neither the injured person nor the actor is at fault for the occurrence of harm, the two parties share loss according to the provisions of the law.” With “…may share loss according to the provisions of the law” replaced by “…share loss according to the provisions of the law”, the former, authorizing the court some autonomous power to rule, had actually transformed into a “referring clause”with more strict limitation. Such way of expression is finally fixed in Art. 1186 of Civil Code.