A new paper by Yuanshi Bu
How do ordinary Chinese people think about justice? Tort law may provide an excellent lens through which to explore this question. Within tort law, the issue of children’s tort liability stands out as particularly illuminating, as it highlights the significant challenges families and schools face in raising, caring for, and educating children in China. Four years after the Chinese Civil Code (CCC) came into effect, more than 10,000 court judgments related to children’s tort liability have already been made available online. Thus, it came as no surprise that the Supreme People’s Court’s first judicial interpretation of the Tort Liability Book of the CCC devoted half of its content to children’s tort liability. After all, the CCC has codified six norms in this area, with three addressing children as tortfeasors and three pertaining to children as victims.
However, Chinese legal scholars often criticize the domestic approach to handling children’s tort liability and have made various proposals for improvement based on foreign models. To understand why these proposals have not been adopted by the judiciary, and to uncover the logic behind the development of Chinese tort law, I examined around 400 relevant court decisions. In recent years, big data analysis of Chinese tort law is becoming increasingly popular. However, given my interest in factual patterns and judicial reasoning, I found it more meaningful to review actual court judgments directly, despite the considerable amount of time associated with it. The judgments I examined revealed the following characteristics of the legal regime governing children’s tort liability:
First, the Chinese regime of children’s tort liability is characterized by a liability union in respect of a minor and his or her parents. This means that if children cause harm to others, both they and their parents are held liable. However, the liability of the child wrongdoer and that of their parents is considered one and the same. This stands in stark contrast to other jurisdictions such as the German one, where parental liability is separate from that of their children. For example, unlike under Chinese law, under German law parents are not liable if they have properly educated their children not to play with fire, and the children nevertheless did so and burned down a house. In addition, in the Chinese liability regime, even toddlers can be considered capable of committing tortious acts. For instance, liability was imposed on the parents of a 22-month-old toddler who ran over the victim’s foot with a buggy. In this sense, tort liability applies to children without a minimum age threshold. Parental liability is incurred automatically, regardless of whether the child is under the parents’ care, even when the harm occurs in a boarding school. A child wrongdoer’s family can be released from liability only if it can show that the harm was entirely caused by the victim or a third party. Under the current legal regime, grandparents in China, who often serve as primary caregivers for young children without emuneration, also face considerable liability risks.
Second, the harsh liability regime is mitigated by the fact that Chinese courts rarely assign 100% liability to child wrongdoers and their parents. Child victims are often held partially liable for their own injuries, regardless of their age. In one case, a nine-year-old child was injured by two other children (aged nine and eleven) who had built an improvised swing from strips of artificial grass on a mobile soccer goal at school, causing it to tip over. Although the victim had done nothing more than stand nearby, he was found 20 % at fault. In the eyes of Chinese judges, being at the wrong place at the wrong time already indicate a failure of the child or the parents.
Third, the above-mentioned finding basically holds true also with regards to harms occurring in schools. While many relevant cases involve minors colliding and losing their (milk) teeth, serious incidents also occur in which victims have lost their eyesight or even their lives. To reduce their exposure to liability, many schools, particularly elementary schools, do not allow pupils to leave the classroom during breaks, except to use the toilet. Additionally, an increasing number of school services, such as transportation and lunch, are being outsourced.
One might ask why parents and schools do not simply take out liability insurance to solve the problem. The answer is that ordinary Chinese still tend to try their luck, at least up to now. In most cases, neither the victim nor the tortfeasor has liability insurance. Even worse, medical coverage is particularly precarious for children: 60.44 % of the treatment costs are reportedly born by the families. This is why people sometimes litigate over relatively minor injuries. Confronted with high vulnerability of the child wrongdoer and child victim in coping with accidents, courts in China often have no choice other than distributing losses among all involved parties to avoid social discontent. In this sense, tort law in China is still loyal to the conventional primary purpose of compensating victims.
Lastly, through reading the judgments, a discrepancy between legal scholarship and the judiciary regarding the perception of what constitutes deficiencies in tort law has become apparent. In fact, it is still extremely rare for Chinese scholars to consider court rulings when researching this topic. Instead, emphasis is placed on comparative law. I believe that if the goal of Chinese legal scholarship is to build an autonomous knowledge system and thereby provide guidance to the legislature and judiciary, more attention must be paid to court practice in China and the rationale behind adjudication patterns. So far, due to the social, economic, and political context in which Chinese tort law operates, it has followed a rather need-based and piecemeal path.
The full paper, titled “Evolution of Chinese Tort Law in the Post-Codification Era: A Comparative Study Based on Children’s Tort Liability”, is published in the German Journal of Chinese Law (in English), vol. 2/2025. Yuanshi Bu is a Professor and the Director of the Chair of International Economic Law with a Focus on East Asia at the University of Freiburg. She can be contacted at asien@jura.uni-freiburg.de.
