(Approved by the Judicial Committee of the High People's Court on October 9, 2020)

　　keyword  Civil/Right to life disputes/Public places/security obligations

　　Points of judgment

　　The stilling pool belongs to the water conservancy project facilities that are forbidden to the public, and does not belong to the "public place" stipulated in the first paragraph of Article 37 of the Tort Liability Law.。Where the manager and owner of the stilling pool have taken reasonable safety tips and protective measures, and a person with full capacity for civil conduct has entered the pool without authorization and caused damage to himself, and requests the manager and owner to bear the liability for compensation, the people's court shall not support it。

　　Relevant law

　　Article 37 (1) of the Tort Liability Law of the People's Republic of China

　　Basic case

　　On January 16, 2017, the Lugou Bridge Police Station of the Fengtai Branch of the Beijing Public Security Bureau picked up Li Moumou 110 and reported that Zhimou 3 went out to walk his dog and did not return, and suspected that Zhimou 3 fell in the ice。After receiving the alarm, the police rushed to the scene to carry out the search work, and found a man dead in the stilling pool in front of the second gate from the west to the east of the Yongding River blocking gate that night, confirmed by his family as a branch 3。When the deceased was found, the surface of the inner pool of the stilling pool on the south side of the Yongding River sluice was frozen, and the height of the ice surface was basically the same as the edge of the stilling pool wall, and there was no water in the channel outside the stilling pool。On January 20, 2017, the Fengtai Branch of the Beijing Municipal Public Security Bureau issued an investigation conclusion on the death of Zhi3 (Fenggong Zhi Zhuzha Zi (2017) No. 021).，The main contents are: after (field investigation, forensic identification, visiting the masses, etc.) work，Based on the evidence available，The following conclusions are drawn: 1. the person is consistent with drowning death;The death of the person is not a criminal case。The family of Ji 3 has no objection to the cause of death。Zhi 3's body was found at the site of Yongding River sluice downstream direction sluice west stilling pool, stilling pool is a part of Lugou Bridge flood diversion hub water conservancy project (sluice)。Beijing Yongding River Management Office is responsible for the daily management, maintenance and operation of Lugou Bridge flood diversion hub project。The Beijing Water Bureau said protective railings had been installed around the site and warning signs had been set up in several prominent places, with the sign stating that the management unit was "Beijing Yongding River Management Office".。The parents of Zhi Mou 3, Ma Mou, wife Li Mou and daughter Zhi Mou 2 sued the court and requested the Beijing Yongding River Management Office to bear the liability for damages。

　　verdict

　　On January 28, 2019, Beijing Fengtai District People's Court made (2018) Beijing 0106 Civil Judgment No. 2975 at the beginning of the Republic of China: Rejecting all the claims of four people including Zhi Mou 1。After the verdict, four people, including Ji Mo-1, appealed。On April 23, 2019, the Second Intermediate People's Court of Beijing made a civil judgment (2019) No. 4755 of Beijing 02 Min End: Rejecting the appeal and maintaining the original judgment。

　　Reason for judgment

　　The main dispute in this case lies in the verification of the location of the drowning accident, the determination of the corresponding management authority, and whether the management authority should bear the tort liability。The main facts and legal disputes of this case are determined as follows:

　　1. Facts concerning the place of death of Zhi3 and the administrative authority。First of all, from the point of view of the cause of death, the public security organs identified that the cause of death of Zhi.3 was caused by drowning;From the scene of the accident, the remains of the branch 3 were found in the stilling pool in front of the Yongding River barrier gate。According to the work record issued by the police station of the public security organ accepting the disappearance of Zhi Mou 3, it can be determined that the drowning place of Zhi Mou 3 is in the stilling pool on the south side of the Yongding River barrier gate。Secondly, about the management of stilling pool。It has been identified that the Beijing Yongding River management Office is the management authority of the Yongding River lock, the Beijing Yongding River Management Office has also been recognized, and clearly confirmed that the stilling pool belongs to its jurisdiction, according to which the Beijing Yongding River Management Office is the branch of a 3 drowning site management responsibility party。In view of the fact that Beijing Yongding River Management Office is a public institution established according to law，They may independently bear corresponding civil liability according to law，Therefore, Beijing Municipal Water Bureau, Beijing Fengtai District Water Bureau, Beijing Fengtai District Yongding River Management Office are not eligible defendants in this case，There is no factual and legal basis for the claim of the four people, including Zhi1, that the three defendants should bear joint and several liability for compensation，unsupport。

　　Second, on the management of the Beijing Yongding River Management Office should bear the infringement liability。First of all, this case does not apply to the tort liability law security obligations。There is often a close relationship between the person protected by the security obligation and the obligor, including the contract consultation relationship, the contract legal relationship, etc. The tort of violating the security obligation is the tort carried out by the person who has the security obligation due to the failure to perform the security obligation within a reasonable range。According to the ascertained facts, the drowning site of Zhi Mou 3 is located in the side of Yongding River sluice stilling pool。By nature，The stilling pond is a part of the Yongding River sluice，It belongs to the category of hydraulic engineering facilities，Not an open ice rink;From the location，The stilling pool is located in the middle of the Yongding River channel under the sluice.Judging by the arrival path，The normal path to the stilling pool，You need to go down the stairs from the embankment of Yongding River to reach the river，Then walk from the Yongding River to the bottom of the dam，Therefore, whether it is the nature of the stilling pool, the location of the stilling pool or the path to the stilling pool，It is difficult to identify the stilling pool as a public place。The Beijing Yongding River Management Office is not the organizer of mass activities, so the four people, including Zhi, appealed that the four appellants did not fulfill their security obligations, which is contrary to the law。Secondly, from the perspective of the constitution of tort liability, if one party claims to bear tort liability, it should bear the burden of proof on the constitutive elements of tort liability such as the existence of illegal act, subjective fault, damage consequence and causal relationship between the illegal act and damage consequence of the other party。Yongding River is not a normal place of activity and passage, according to common sense, whether it is entering the river or entering the ice, it is easy to endanger the personal danger, such prediction of dangerous consequences, do not need knowledge to know。In the case of knowing the risk of entering the river and walking on the ice, Zhi3 still entered the area and caused its own drowning, which is subjectively consistent with the fault of overconfidence, and should bear the corresponding damage consequences。Adults should be the first person responsible for their own safety and security, can not put their safety in the relevant state agencies under the reminder of all the time, outdoor activities should seek benefits and avoid harm, not randomly enter the non-mass activity places is a code of conduct that every citizen should consciously abide by。To sum up, Beijing Yongding River management Office is not at fault for the death of Zhi Mou 3, and should not be liable for compensation。It needs to be pointed out here，Accidentally drowned due to Zhi 3，Resulting in the loss of children in old age, and the loss of father in young age，The family's circumstances are sympathetic，The court understands that，However, whether the responsible party for compensation constitutes infringement needs strict definition in law and support in evidence，The loss cannot be assigned to other parties who do not constitute infringement based on the principle of emotional or consequentialist liability。

　　(Effective judges: Xing Shuhua, Tang Jiyi, Chen Guangxu)