New York, November 17, 2009 – As China draws closer to implementing a comprehensive new liability law for accidents, medical malpractice, defamation and other torts, it has looked to other countries’ systems to help shape their own.
“There is a lot of law governing tortious conduct on the books, but China has been trying to craft a complete civil code. Creating a comprehensive tort liability law is an important part of this process,” Liebman said.
The trip was organized by the China Law Center at Yale Law School and the Legislative Affairs Commission of the National People’s Congress in China, which is likely to vote on the proposed tort liability law when it holds its annual meeting in March.
“They’re certainly not copying any other system, but looking at practices around the world to see what might be most appropriate for China,” Liebman said.
It is an exercise that is both complex – given the diversity of China – and lengthy. Liebman, who is currently studying tort litigation in rural China, said the drafting of the new law has taken the better part of the decade.
One issue that has gained prominence is liability for online defamation, especially in the wake of so-called “human flesh search engines,” a form of Internet mobbing
in which web users band together to attack someone, often publishing personal information, derogatory comments and even death threats.
Internet service providers in the U.S. are immune from liability for content they do not create, a practice Liebman said the Chinese found “very surprising” and are unlikely to emulate. China already offers broad protections for plaintiffs in defamation cases.
In a 2006 Harvard International Law Journal
article, Liebman found defamation lawsuits in China intimidate and restrain an increasingly autonomous media, but may also increase official accountability.
“We had some very interesting discussions about why the U.S. has made that decision and about what level of knowledge a website should have about defamatory content before it is exposed to liability,” Liebman said. “We certainly were not trying to tell them the U.S. has all the solutions, but we were trying to help them think critically about what are the issues.”
Regarding other aspects of tort law, Liebman said a major test will be whether the new laws will provide adequate compensation to victims of accidents or medical malpractice.
“This is a country without much of a social safety network,” he said. “They’re trying to figure out how to create tort law.”
And the creation of that law has been an “increasingly transparent process,” Liebman said, in keeping with a tendency toward law drafting in China that has become “much more skill-based and more pluralistic.” For example, a draft of the law was recently made public, with citizens invited to submit comments online. “It is clear that officials are tracking those comments carefully.”
But that has not made crafting the law any easier. With so many issues in play – such as whether people in rural areas should be compensated at the same levels as those in urban areas -- – Liebman said the new law is bound to be refined and revised over time.
“They’re not going to resolve every issue, they can’t,” Liebman said. “I think they’re trying to give more clarity than they have now.”
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