Research On The Civil Liability Causing By Goodwill Pick-up

With the continuous development of the economy and the society, the number of motor vehicles is increasing rapidly, and traffic accidents are frequent. The accident dispute caused by goodwill pick-up account for a large proportion of the traffic accidents. As a social mutual behavior, under normal circumstances, goodwill pick-up is adjusted by moral, custom and other social norms, while law does not intervened in it, only when goodwill pick-up causes dispute and leads to damage, law can intervened in it. In consequence of the kindness of goodwill pick-up, the dispute caused by goodwill pick-up should have some special rules. Law also must consider human feelings, give consideration to both social effects and legal effects is an integrant part of justice and equality. In theory, the study about goodwill pick-up is less; in judicial practice, the processing modes of cases related to goodwill pick-up are different. Therefore, in order to balance the interests of both parties and raise the acceptability of judgment, we should create special rules and mechanism about the cases related to goodwill pick-up. In this way, on the one hand, we can carry forward spirit of interdependent and to guide the social values of people; on the other hand, we can maintenance the interests of both parties effectively and contribute to construction of a harmonious society.The first part mainly introduces the concept, characteristic and nature of goodwill pick-up. As a new social behavior, the characteristic of goodwill pick-up include good intention, both the destinations are in the same direction, the parties reach a consensus and so on. There are a lot of doctrine about the nature of goodwill pick-up, on the basis of systematic analysis, the article put forward a new define way, which is based on the Typisierung. We can see Provisional goodwill pick-up as a gefalligkeite, while usual goodwill pick-up is a legal act.Part two analyzes the status quo of research on goodwill pick-up at home and abroad。In theory and judicial practice, the processing modes of cases related to goodwill pick-up are different. Although people has been widely recognized that the infringer shall bear the compensation liability in accordance with the law, the lack of unified standard and specific provision still lead to the inconformity of judgments. On the basis of systematic analysis of the status quo of research on goodwill pick-up, we can know that the issue and status quo of judgments related to goodwill pick-up, the inconformity of judgments, the lack of protection on interest of infringer, the lack of acceptability and so on. The status quo of research on Goodwill pick-up in foreign is consistent with that in china, based on the consensus that the infringer shall bear the compensation liability in accordance with the law, the process mode are different, such as "Automobile Guest Statutes" in America, the "other person" norm in Japan and so on.Part three, in the case of rules lack, put forward the process mode of goodwill pick-up from the perspective of legal method. In the analysis of judicial initiative and the logic of the legal methodology system, we can know that the lack of judicial initiative and the mistake of logical path lead to the inconformity of judgments. Based on the logic of the legal methodology system and the specific situation of goodwill pick-up, and choose an exact logical path, made comprehensive analysis the goodwill pick-up with the tools of law-finding, complement law loophole, balancing of interests, legal argument and so on.Part four; put forward the forward-looking measure to resolve the issue from the perspective of theoretical corrections and system construction. Determine the duty of care is the key to solving the problem of goodwill pick-up. And we should determine fault principle and adopt both objective and subjective standard to determine infringer's fault, we need to take into account moral factors when we identify subjective offence. In terms of system construction, in order to diminish responsibility of infringer, limit of compensation responsibility and liability should be adopted. The key to solving the problem of goodwill pick-up is determine the asserting rules of liability with fault still on base. In terms of rules application, we should take different manners of application on the basis of typisierung, and take contributory negligence. In addition, improve the liability insurance system, which can sharing social risk, is also an useful method to solve the problem of goodwill pick-up.