Viewpoint... High-altitude parabolic lawlessness, although the ground is also difficult to peace-on the "high-altitude parabolic" illegal behavior regulation before and after the promulgation of the Civil Code.

There are tens of millions of Ande Guangsha, which is an ideal that the poet Du Fu can hardly reach. But now there are many high-rise buildings and buildings, but it is difficult to protect the owner's right to walk downstairs. Although he is on the ground, he is worried, because not only garbage is falling from the sky, but there are even various weapons that kill human beings-ashtrays, dumbbells, bicycles, trolleys, kitchen knives. This is not an imitation of the Galileo Leaning Tower iron ball test, but a simple "high-altitude parabolic", so shocking can you still walk on the ground?

1. searching the number of "high-altitude parabolic" cases, we can find that the number of "high-altitude parabolic" cases has increased sharply in the past two years, reaching 199 in 2018 and 415 in 2019. However, in 2020, news of "high-altitude parabolic" will continue and even begin to challenge the limit.

On the night of September 14, 2020, on the road near a residential area in Luohu District, Shenzhen, Guangdong Province, many sundries fell one after another five times, from garbage bags to dumbbells, discus to trolleys weighing 15 kilograms, one after another. Shanghai Jinshan Court held a public hearing on the first high-altitude throwing criminal case in Jinshan District and pronounced a verdict. In April 2020, the accused Lin Mou was drunk to vent his emotions, from the balcony of his home on the fourth floor, he threw wine bottles, chairs, bricks and other items downstairs for more than 40 minutes. In Building 127, Youfang Street, Suining City, Sichuan Province, an iron ball fell from the sky and hit a baby girl under one year old in the stroller downstairs. Although after 9 hours of full rescue, the baby girl still unfortunately passed away.

From a time point of view, the number of "high-altitude parabolic" cases has increased sharply in recent years, but from a geographical point of view, it is concentrated in the economically developed areas in the central and eastern regions. What is the reason, expect sociologists to study and analyze. Let's experience the horrible acceleration of gravity, a 4cm long nail that can be inserted into a person's skull from the 18th floor. An empty pop can can be thrown from the 15th floor to break a person's skull and from the 25th floor to cause immediate death. A 60-gram egg can break the scalp from the 8th floor, break the skull from the 18th floor, and kill people from the 25th floor. Some are pranks, some are wanton, and some are simply venting, but no matter what the purpose, the danger and result are the same, and it is the same misfortune for all victims.

2. the four stages of the judicial practice of the people's court on the issue of "high-altitude parabolic.

For the problem of "throwing objects from high altitude", it has become a common way for victims to sue the residents of the whole building to protect their rights, but the legal basis is different in different periods. Judicial practice has gone through four stages, which are bounded by the promulgation of the following three legal documents. Before the promulgation of the interpretation of the law applicable to the trial of personal injury compensation cases by the Supreme people's Court, and before the promulgation of the Tort liability Law and the Civil Code, there are various ways to deal with specific cases.

(I) the 2003 "Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" was promulgated, the people's court's judgment criteria for hearing such cases were based on Article 130 of the "General Principles of Civil Law", "If two or more persons jointly infringe and cause damage to others, they shall bear joint and several liability."

However, this provision is a joint tort of two or more persons, which is subjectively premised on joint intent or negligence. However, considering the occurrence of "high-altitude throwing" in a specific building, there is no meaningful contact between the owners of the building. The court's application of the law can only solve the problem of joint and several liability, but it is not convincing to consider other elements of infringement.

Before the promulgation of the Interpretation of Compensation for Personal Injury by the Supreme People's Court, China's laws and regulations did not provide for joint dangerous acts, which caused confusion in judicial practice. It is highlighted in two aspects: 1. Because the law is not expressly stipulated, the judgment of related cases has no basis, which often results in inadequate protection of the victim or even unable to provide relief for its damage. 2. There is no legal basis for the definition of joint dangerous acts. Some cases that do not belong to joint dangerous acts are regarded as joint dangerous acts and are jointly and severally liable. This part of the judgment loses the standard of justice for "joint dangerous actors. The most typical is the "high-altitude parabolic" case.

Before the implementation of the interpretation of personal injury by throwing objects from high altitude, before the implementation of the interpretation of compensation for personal injury of the Supreme People's court, the relevant legal provisions such as Article 130 of the general principles of civil law still have vague meanings, and there are great differences in the understanding of the academic circles, and the understanding and judgment standards of local courts are not uniform. The Supreme People's Court's Trial and Supervision Division held this view in response to the Shandong Higher People's Court's request for instructions on the dispute over compensation for personal damages between 5 people including Li and 15 people including Liu. The basic facts of the case are as follows: at noon on June 20, 2001, the complainant's mother (death) was standing in front of the entrance to the first corridor of Unit 2, Building 76, Linxiang Street, Jinan City, talking to her neighbors. Suddenly, she was hit on the head by a wooden pier that fell from the second unit building, fainted on the spot, and died after rescue. The public security organs identified the deceased as a craniocerebral injury caused by falling objects from a height. Li and other 5 people (the heirs of the deceased) took Liu and other 15 people (the owner of Building 76, Linxiang Street) as co-defendants to the court, and later refused to accept the 1.'s second instance judgment. The majority opinion of the Shandong Higher People's Court believes that after the entity trial, if the specific responsible person is not found, the 15 defendants should bear the victim's losses; a minority opinion believes that the plaintiff's claim should be rejected. In response, the Supreme People's Court's Trial and Supervision Division replied to Shandong High Court on May 18, 2004 by telephone number [2004] Minjianhe Zi No. 4: "After research, I agree with the majority opinion of your trial committee. Please try your best to resolve this case through mediation."

The trial process of the case is sufficient to see the considerable entanglement of the judiciary, and the final recommendation is still unable to qualitatively promote mediation. Carefully consider whether it is fair for persons unrelated to the falling object to be jointly and severally liable? If the owners of the building cannot share the responsibility and cannot find the infringer, who will bear the damage to the victim? If judged according to the rules of falling of shelved objects, the manager or owner of the wooden pier shall bear the presumptive fault liability, but the premise still needs to find the manager or owner of the fallen wooden pier? There are obviously paradoxes as to whether it belongs to the singular situation of falling multiple wooden piers and unable to distinguish the personnel causing danger.

After the promulgation of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases in 2003, the (II) formulated the "Joint Dangerous Acts" clause in an attempt to resolve related disputes.

Article 4 of the judicial interpretation, "If two or more persons jointly commit acts endangering the personal safety of others and cause damage, and the actual perpetrator cannot be determined, they shall bear joint and several liability in accordance with the provisions of Article 130 of the General Principles of the Civil Law. If a joint dangerous actor can prove that the damage was not caused by his act, he shall not be liable for compensation."

This article provides for three issues: 1. It defines the connotation of joint dangerous acts. Joint dangerous behavior refers to the tort in which the index person jointly commits an act that endangers the personal safety of others and causes damage, and the actual perpetrator cannot be determined. 2. To provide for the assumption of responsibility for joint dangerous acts. After the establishment of the joint dangerous act, although the real infringer can only be one or some of them, if it is impossible to determine who is the real infringer, according to Article 130 of the General principles of Civil Law, several actors who jointly commit the danger shall bear joint and several liability. 3. Provisions on the exemption of persons of common danger. Although a joint dangerous act has been committed, the perpetrator may be exempted from liability if he can prove that the victim's damage was not caused by his dangerous act.

Some courts held that the dispute over compensation for high-altitude throwing injuries should be characterized as a common dangerous act, and then ruled that all residents of the building were common dangerous actors and were jointly and severally liable. According to the definition of joint dangerous acts in Article 4 of the interpretation of personal injury compensation, in the absence of evidence to prove that all residents of the building have "joint intention to carry out dangerous acts" and actually carry out "joint dangerous acts", such disputes should not fall within the scope of joint dangerous acts system.

After the "Tort Liability Law" was promulgated in (III) in 2009, "high-altitude throwing" was classified as the liability for damage caused by objects, and compensation was given by the user of the building that may cause damage.

Before the introduction of the Tort Liability Law, due to the lack of legal clarity on related issues, the court's handling of disputes over the liability for damage caused by throwing objects was inconsistent. Some judgments were made that the victim should bear the loss to reject the prosecution, and some were based on the building. The owner of the building is responsible, and some owners who may cause damage are jointly and severally liable based on the rules of common dangerous behavior, others are based on the principle of fairness to order the victim and the owner to share the consequences of the damage.

In the end, Article 87 of the tort liability law clearly stipulates that "if an object thrown from a building or an object falling from a building causes damage to others, and it is difficult to determine the specific infringer, in addition to proving that he is not the infringer, compensation shall be given by the user of the building who may cause harm." The term "compensation" rather than "tort compensation" is actually an extension of the principle of legal fairness.

(IV) the enactment of the Civil Code of 2020, the proclamation of the throwing of objects from buildings is prohibited and detailed in article 1254.

1. Civil Code rules for high-altitude parabolic treatment

Throwing items from the building is prohibited. If an article is thrown from a building or an article falling from a building causes damage to others, the infringer shall bear the tort liability in accordance with the law; if it is difficult to determine the specific infringer after investigation, unless it can be proved that he is not the infringer, the user of the building who may cause the harm shall give compensation. The user of the building who may have caused the damage shall have the right to recover the compensation from the infringer.

The principle set out in the Civil Code is still based on the principle of identifying the "infringer" and assuming its responsibility. Only in cases where it is impossible to identify, compensation will be given by the user of the building who may have caused the harm ". This provision still implements the legal concept of "the infringer bears his own responsibility", rather than the building user to bear the responsibility for compensation, and even if it cannot be found out, not all the users of the building are responsible, but to limit its scope to "the user of the building who may cause harm".

On October 21, 2019, the Supreme People's Court issued the Opinions on Properly Hearing Cases of Throwing Objects and Falling Objects from High Altitude in accordance with the Law, which clearly stipulates that when the people's court accepts disputes in which objects are thrown from buildings and falling objects cause damage to others, it is necessary to explain to the parties as far as possible to provide specific and clear infringers, and try to limit the scope of "building users who may cause harm" to reduce the parties. If the infringer is unknown and other responsible persons cannot be added in accordance with the law, the parties shall be guided to resolve conflicts and compensate losses through diversified dispute resolution mechanisms.

2. If it is difficult to identify the infringer, the public security and other organs shall assist in the investigation in a timely manner in accordance with the law.

If the burden of proof is placed on the plaintiff in a civil case, it is difficult for him to fulfill the burden of proof, so Article 1254, paragraph 3, of the Civil Code specifically stipulates that public security and other organs should investigate in a timely manner in accordance with the law and find out who is responsible. To help the parties to straighten out the infringer and compensation legal relationship. Recently, there has been news that after a dispute occurred in a community due to throwing corn cobs at a high altitude, the property of the community directly informed in the form of a notice that if it did not take the initiative to admit it, it would report the case to the Public Security Bureau and identify the infringer by means of DNA identification, and seriously investigate its legal responsibility. The infringer voluntarily surrendered under pressure and was dealt with according to law. This is sufficient to illustrate the importance of the role of the relevant authorities in supporting identification.

3. Property service enterprises how to take the necessary security measures

The property service company itself is the "building manager" entrusted by the owner, and it should naturally take necessary safety measures to prevent the occurrence of "high-altitude parabolic. Failure to take the necessary security measures shall bear the tort liability for failure to perform the security obligations in accordance with the law. What are the necessary security measures should be carried out by the property service enterprises according to the situation of different communities, such as inspection, education, prompt, supervision, installation of cameras, etc. However, on June 15, 2020, a high-altitude throwing object in a residential area in Zhangqiu, Jinan, dropped the bicycle. The installation of three cameras in the residential area could not confirm the actual infringer of the high-altitude throwing object on the 22nd floor, because the infringer was not his own home and threw the object from the public area of the corridor. Finally, the infringer was determined by the public security organ and brought to justice.

The behavior of throwing and falling objects from high altitude is caused by extreme personal behavior, which also causes serious damage to social public safety. Especially in the case of personal injury and property losses, it also involves innocent owners of the building, causing social conflicts and neighborhood conflicts. Therefore, the state has long noticed the harmfulness of the bad behavior of "throwing objects from high altitude", and has continuously resolved related disputes by improving relevant laws and judicial interpretations, and managed them through comprehensive civil, administrative and criminal means. At present, many infringers have been sentenced to imprisonment for the crime of endangering public safety. The Supreme People's Court's Opinions on Properly Hearing Cases of Throwing Objects and Falling Objects from High Altitude in accordance with the Law clearly stipulates that deliberately discarding objects from high altitude has not caused serious consequences, but it is enough to endanger Public safety shall be convicted and punished in accordance with the crime of endangering public safety by dangerous means stipulated in Article 114 of the Criminal Law; causing serious injury, death or heavy losses, shall be punished in accordance with the provisions of paragraph 1 of article 115 of the criminal law. Those who commit the above-mentioned acts in order to injure or kill specific persons shall be convicted and punished in accordance with the crime of intentional injury and intentional homicide, which means that the maximum penalty for "throwing objects from a height" can be the death penalty.

Everyone has the right to yearn for a better life. Even if you have given up, please leave a passage for pedestrians to walk through with peace of mind.