The first link: "Tao" listens to "road" and says the rights and responsibilities of the general provisions of the civil code (Part I)

Civil liability is an important system to ensure the realization of civil rights. It is more reasonable to specify civil liability after listing various civil rights. The special chapter stipulates the general concept of civil liability and abstracts out the general rules, so as to be generally applicable to all kinds of civil liability, and at the same time, improve the relief channels and methods after civil rights are infringed. Such a clear legal responsibility is conducive to guiding civil subjects to strengthen their awareness of consciously performing legal or agreed obligations, preventing and Punishing Violations of civil obligations, and effectively protecting the civil rights and interests of obligees.

There are 12 articles in Chapter 8 of the civil code, which mainly stipulates the concept and classification of civil liability, the way to bear civil liability, the reasons for exemption, and the principles for dealing with the concurrence and convergence of liability. The thought map of Chapter VIII "civil liability" is as follows:

三、 Connotation and extension of civil liability

（一） Definition

Article 176 of the Civil Code stipulates that "a civil subject shall perform civil obligations and bear civil liabilities in accordance with the provisions of the law or the agreement of the parties". The so-called civil liability refers to the adverse consequences that civil subjects should bear when they violate civil legal obligations. It can be seen that the assumption of civil liability is based on the violation of civil obligations. This article is a revision and improvement of Article 106 of the general principles of the civil law. On the one hand, the "citizen and legal person" are uniformly revised to "civil subject"; Secondly, the principle of imputation of tort liability "fault liability and no fault liability" is deleted and placed in the division of tort liability; Third, the "breach of contract or non performance of other obligations (liability for breach of contract, non liability for breach of contract)" is improved to "in accordance with the provisions of the law or in accordance with the agreement of the parties (legal liability, agreed liability)".

（二） Classification

1. Agreed liability and legal liability

According to the different sources of civil liability or obligation, it can be divided into contractual liability and statutory liability. If the obligation causing civil liability originates from the agreement of the parties, it is the agreed liability; If the obligation causing civil liability originates from the provisions of law, it is a legal liability. Generally, the liability arising from the parties' breach of contract belongs to the category of liability for breach of contract, and the liability for infringement of civil rights and interests stipulated by law belongs to the category of tort liability. Generally speaking, the legal liability is more mandatory. In case of violation of the mandatory provisions of the law, the parties shall not be allowed to exclude by agreement; However, the breach of contractual obligations can allow the parties to exclude the application through supplementary agreements or even through new agreements.

2. Joint and several liability

In the case of several persons bearing liability, civil liability can be divided into share liability and joint liability based on the number of external liabilities borne by the responsible persons and the difference of internal shares among the responsible persons. The main difference between share based liability and joint and several liability is that the external responsibilities undertaken by the two are fundamentally different: the responsibility shares of each responsible person of share based liability are independent, and they are only responsible for their own shares and not for the overall responsibility; Although there are shares among the responsible persons of joint and several liability, such shares are internal, and each responsible person needs to bear all responsibilities to the obligee.

(1) Share responsibility

According to the share responsibility, it means that when there are more than one person responsible, each responsible person shall bear civil liability to the obligee according to a certain share, and there is no joint and several relationship between the responsible persons. According to Article 177 of the civil code, it is possible to determine the size of liability, that is, to judge the possibility or causal force by considering the degree of fault of each civil subject, the closeness of the causal relationship between the specific act of failing to perform the obligations according to the law or the agreement of the parties and the legal consequences, the principle of fairness, the principle of good faith and other factors, Then determine the liability share according to the possibility or cause force of each civil subject to the consequences of causing damage; If it is difficult to determine the size of the liability, that is, the case is complex, and it is difficult to distinguish the impact of each act that does not perform civil obligations in accordance with the provisions of the law or the agreement of the parties on the consequences of damage, then each actor shall bear civil liability on average.

(2) Joint and several liability

Joint and several liability refers to a kind of civil liability in which two or more parties bear full liability for the civil liability arising from the non performance of civil obligations in accordance with the provisions of the law or the agreement of the parties, and thus cause internal liability relations. According to the provisions of Article 178 of the civil code, firstly, the obligee has the right to request all or part of the jointly and severally liable persons to bear the liability; Second, after the joint and several liability persons have assumed the responsibility externally, they usually need to determine their respective responsibilities internally: determine the size of the responsibility according to the comparison of their respective faults and causal forces; if the size of the responsibility cannot be determined, they shall bear it equally; Third, the joint and several liability persons who actually bear more than their own share of liability have the right to recover from other joint and several liability persons to ensure that the joint and several liability persons can reasonably share the risks.

According to share liability and joint and several liability, agreed liability and legal liability, only the basis of classification is different, and there is no corresponding relationship. The liability according to the share can be agreed by itself or according to legal provisions; Joint and several liability may also be in accordance with the agreement or in accordance with the law. In this regard, during the deliberation of the draft general provisions of the civil law at the fifth session of the Twelfth National People's Congress, some deputies proposed that joint and several liability is a relatively strict form of liability in which two or more debtors jointly bear civil liability to creditors. Unless otherwise agreed by the parties, it should be stipulated by law. After study, a paragraph is finally added to this article as paragraph 3: "joint and several liability shall be stipulated by law or agreed by the parties." This provision is maintained in the civil code.

The connection between substantive law and procedural law: whether it is joint liability or joint liability, in the practice of civil and commercial dispute settlement, there is a problem of the qualification of the responsible person as the subject of litigation. Article 55 of the civil procedure law stipulates the system of joint action, and Article 135 stipulates the system of the people's court notifying the parties who must participate in the joint action; Article 73 of the judicial interpretation of the civil procedure law gives the parties the right to apply for the addition of necessary parties to a joint action to participate in the proceedings. In addition, Article 2 of the judicial interpretation of personal injury, Article 10 of the judicial interpretation of traffic accidents, Article 4 of the judicial interpretation of private loans, and Article 26 of the judicial interpretation of construction projects, which have been issued and revised by the Supreme People's court, regulate the participation of parties with joint liability or joint liability in joint litigation.

（三） Responsibility bearing

1. Mode of undertaking

The first paragraph of Article 179 of the Civil Code stipulates the ways to bear civil liability: to stop the infringement; Remove obstacles; Eliminate hazards; Return of property; Restitution; Repair, rework and replacement; Continue to perform (New); Compensation for losses; Pay liquidated damages; Eliminate the impact; Rehabilitation; Make an apology. The third paragraph provides that the obligee may request separate application or combined application according to the actual situation.

2. Punitive damages

The second paragraph of Article 179 of the Civil Code stipulates the punitive compensation system, which is a new provision. Punitive compensation system refers to the system that the amount of damages to be borne by the aggressor exceeds the actual amount of damage to the victim, and on the basis of compensating the victim for the damage, it highlights the punishment of the aggressor. Compared with compensatory damages, punitive damages consist of compensation and punishment. [2] Article 1185 of the tort liability series of the Civil Code stipulates "punitive compensation for intentional infringement of intellectual property rights", article 1207 stipulates "punitive compensation for product liability", and article 1232 stipulates "punitive compensation for environmental pollution and ecological damage liability".

四、 Exemption of civil liability

（一） Force majeure

Article 180 of the civil code provides for the exemption of "force majeure". Force majeure refers to unforeseeable, unavoidable and insurmountable objective conditions. There are both force majeure due to natural reasons, such as earthquakes, typhoons, tsunamis, etc., and force majeure due to social reasons, such as wars, disturbances, epidemics, etc. In each sub part, article 590 of the contract part follows the content of Article 117 of the contract law, which stipulates that force majeure shall be exempted from liability for breach of contract; Articles 1237 and 1238 of the tort liability series provide that the operator of civil nuclear facilities and the operator of civil aircraft shall be exempted from tort liability under force majeure. As far as other separate laws are concerned, Article 48 of the postal law and Article 160 of the civil aviation law have provisions on exemption from force majeure.

（二） Self defense

Article 181 of the civil code is about the exemption of "self-defense". The so-called self-defense refers to the necessary defense measures taken by the actor to protect the legitimate rights and interests of himself or others and the social public interests from the ongoing urgent infringement. The general constitutive requirements include: illegal infringement is ongoing and has realistic urgency; For the purpose of legitimate defense; For the perpetrator himself; Defense cannot exceed the necessary limit. There are two factors to consider whether justifiable defense exceeds the necessary limit: the means and intensity of infringement; The comparison between the rights and interests protected by defensive acts and the rights and interests infringed by defensive acts.

（三） Emergency avoidance

Article 182 of the Civil Code stipulates the exemption of "emergency risk avoidance". The so-called emergency risk avoidance refers to the emergency measures taken under the circumstances of necessity to cause a small amount of losses to others in order to avoid greater damage to their own or other people's legitimate interests and social public interests. This is a system in which the lesser of the two rights is mutually harmful. The constitutive requirements are: the danger is occurring and has urgency; For the purpose of legitimate risk avoidance; Risk avoidance shall not exceed the necessary limit. Emergency risk avoidance exceeding the necessary limit means that the adoption of emergency risk avoidance measures does not mitigate the damage, or the damage caused by emergency risk avoidance is greater than the interests preserved. [3] If the measures taken for emergency risk avoidance are inappropriate or exceed the necessary limit, the emergency risk avoidance personnel shall bear appropriate responsibilities.

（四） A good man pays well

1. Damage to others caused by emergency rescue

Article 184 of the Civil Code stipulates that the salvor shall not bear civil liability for any damage to the aided person (other person) caused by the voluntary rescue act. Voluntary implementation of emergency rescue is a situation in which the actor gives timely assistance to the recipients suffering from difficulties in response to the emergency situation. The emergency situation here may be not only illegal infringement, but also sudden illness and personal distress of the recipient.  The general exemption conditions include the urgency of the rescue situation, the voluntariness of the rescue behavior, and the pertinence of the rescue object.

2. Act bravely and do harm to yourself

Article 183 of the Civil Code stipulates the civil liability and civil relief of the courageous person (himself) who suffers damage. The so-called "courageous act" refers to the rescue action to protect the personal and property rights and interests of others and stop all kinds of torts and accidents without legal or agreed conditions. In the notice of the Supreme People's Court on Several Issues concerning strengthening civil trials and ensuring the people's livelihood under the current situation, it is pointed out that "it is necessary to encourage and protect good people and good deeds such as acting courageously according to law, and resolutely stop the acts of using the media to maliciously hype and falsely claiming to act courageously to evade civil liability". In order to carry forward the socialist core values, advocate a good social atmosphere, encourage and support courageous acts, and prevent the courageous acts from "shedding blood and tears", this article stipulates the right of claim and the rules of responsibility of the courageous acts: the principle is that the infringer shall bear the responsibility, and the beneficiary shall make appropriate compensation.

In order to further resolutely implement and carry forward the socialist core values, article 185 of the Civil Code stipulates the civil liability for infringing upon the personal interests of heroes and martyrs, which has distinctive Chinese characteristics and characteristics of the times. Heroes and martyrs shed their heads and blood, and made important contributions in the period of revolution and construction. Insulting and slandering heroes and martyrs not only hurt the feelings of their families, but also damage the social and public interests. During the deliberation of the general principles of civil law at the fifth session of the Twelfth National People's Congress, some deputies pointed out that in real life, some people maliciously slander and insult the reputation and honor of heroes and martyrs by distorting the facts, distorting and smearing them, which has a bad social impact and should be regulated. After study, the Law Committee believes that heroes and martyrs are the embodiment of the spirit of a country and a nation, and the benchmark of leading social trends. Strengthening the legal protection of heroes' names, reputations, and honors is of great significance to promoting social respect for heroes and martyrs, promoting good and suppressing evil, and promoting socialist core values. [5] Therefore, it provides for the protection of the personal interests of heroes and martyrs, and the close relatives of heroes and martyrs and the procuratorial organs can bring a lawsuit to the people's court to safeguard their rights.

五、 Concurrence and aggregation of civil liability

（1） Concurrence of civil liability

Article 186 of the Civil Code stipulates the concurrence of liability for breach of contract and liability for tort. According to the different nature of civil obligations violated by civil subjects, civil liability can be divided into liability for breach of contract and liability for tort. The main differences between the liability for breach of contract and the liability for tort are as follows: first, the obligations for breach are different: the liability for breach of contract violates the obligations agreed by the parties, and the liability for tort violates the obligations stipulated by the law. Second, the scope of protection is different: the scope of liability for breach of contract is limited to creditor's rights, and the scope of tort protection includes personality rights, identity rights, intellectual property rights, real rights and creditor's rights. Third, the consequences and bearing methods of liability are different: the liability for breach of contract has legal provisions, and the parties are allowed to agree in principle. The scope of liability and bearing methods include compensation for losses and payment of liquidated damages and other forms of liability with property as the content, but generally do not include compensation for spiritual damage; The tort liability can not be agreed, and can only be stipulated by the law, and the liquidated damages cannot be applied. However, the non property liability methods such as eliminating the influence and restoring the reputation can be adopted. Fourth, the rules and principles are different: the liability for breach of contract follows strict liability, regardless of whether there is fault; Tort liability is generally based on the principle of fault liability, with the exception of strict liability. Fifth, the burden of proof is different: for the performance of the contract, the party performing the obligation shall bear the burden of proof; For tort, the victim bears the burden of proof on the constituent elements.

In judicial practice, due to the difference between the lawsuit of breach of contract and the lawsuit of infringement in the aspects of case jurisdiction, the qualification of the parties, the limitation of action, the distribution of the burden of proof, and the scope of responsibility, the lawsuit filed by the obligee will have a significant impact on the trial result of the case. Giving the parties the right to choose can better balance the interests of the parties and save judicial resources. In practice, it often happens that the plaintiff has not made a clear choice between the action of tort liability and the action of breach of contract liability, and the people's court shall explain it and require it to make clear. If the obligee has not made a clear choice after the interpretation, the people's court "shall make a choice by explaining the adverse consequences of his failure to make a choice. If the case cannot be continued due to his failure to make a choice, the people's court may rule to dismiss the lawsuit." Therefore, as the litigant agent of the parties, lawyers are required to carefully consider the pros and cons of the lawsuit of breach of contract and the lawsuit of infringement, and make appropriate choices through professional analysis.

（2） Aggregation of civil liability

Article 187 of the Civil Code stipulates the aggregation of liability and the principle of priority of civil liability. Aggregation of liability means that the actor commits a certain act, violates two or more legal norms of different nature, and constitutes and bears two or more legal liabilities of different nature.

The priority of civil liability is the following factors: the priority of civil liability is the need to realize the value of law; The principle of priority of civil liability is the need to maintain the order of market economy and the security of transactions; Administrative liability and criminal liability mainly reflect the punishment of the state to the actor, while civil liability mainly compensates the victim.

Civil law takes rights as its core, and responsibility is to better guarantee the realization of rights. As for the protection of rights, there is also a famous saying "don't sleep on your rights". For the time attribute of the right, how long is the limitation of action and how to calculate the period, please see the following episode "hearsay: limitation and period of civil code".