| There are two core issues in the study of acts of friendship in civil law.One is the determination of the nature of acts of friendship,which is directly related to the legal effect of acts.Second,the composition and limitation of responsibility in friendship behavior,which is also the most direct manifestation of the particularity of friendship behavior.In the judicial practice of our country,the problems existing in the judgment of friendship behavior disputes in the nature of the behavior,the constituent elements of the liability for tort,the limitation of liability and other aspects,in the final analysis,are the lack of clear understanding and systematic research on the above two core issues.In this paper,the concept of friendship behavior in the broad sense is used to study friendship behavior,that is,all behaviors with the characteristics of free,altruistic and participants' willingness are included in the category of friendship behavior,which is conducive to a comprehensive understanding of friendship behavior and a proper solution to the two core issues mentioned above.According to the differences in the degree of contact and communication between the parties and the differences in the legal effect,this paper divides the friendship behavior into the friendship behavior with special bonding relationship and the pure friendship behavior,and the former can be divided into the friendship contract and the friendship behavior with protection obligation.Friendship contract is a binding creditor's right and debt relationship formed between the parties for the benefit of others.The friendship contract stipulated in German Civil Code includes gift,use loan,free custody and appointment.The Civil Code of our country also stipulates the gift contract,free custody contract and free entrustment contract.In addition to these typical contracts,there are also some non-typical friendship contracts,such as partnership or quasi-partnership contracts,family or spouse contracts,which are characterized by mutual obligations for the purpose of promoting the realization of common goals,among which there is the exchange of gratis acts.In this kind of group relationship of mutual obligation for the common goal,the liability arising from the close interpersonal relationship between the parties is stipulated in the German Civil Code.There are both obligation of payment and obligation of protection in friendship contract.The act of friendship subject to the obligation of protection is a doctrinal classification in which the parties have negotiated the kind,goods,and circumstances of the friendship benefits and the doer has in fact provided the friendship benefits.Although no legal binding will is established,a close connection and trust relationship are formed among the participants,thus forming a legal debt relationship.Although there is no obligation of compulsory payment,there is obligation of protection.The pure friendship behavior is the behavior at the social level outside the scope of legal adjustment.There is no obligation for the friendship doer to perform,that is,the recipient lacks the benefit of performance.However,if the friendship doer has completed the friendship payment,the recipient can legally retain the benefit of the friendship payment,and the payee cannot claim to return it on the grounds of unjust enrichment.As an extra-legal social behavior that cannot be adjusted by the law,the law does not enforce the performance nor the return,so the attitude of not commenting on it should be consistent.This effect is similar to the legal effect of the debt of nature.However,if the pure friendship behavior causes the loss of the beneficiary,it will fall into the scope of tort law adjustment and form tort debt.The pure act of friendship and the contract of friendship can be distinguished according to the subjective standard of meaning bound by law and relevant objective criteria.The meaning of being bound by law is called the intention to enter into a legal relationship in Anglo-American countries.The subjective standard should be interpreted in an objective normative way,that is,from the perspective of the receiver,the effect meaning that the rational receiver can or should understand,which should be taken as the standard.The relevant objective criteria include the type and basis of friendship behavior,the economic significance of friendship payment,the risk of friendship payment,and the benefit status of the actor and the recipient of friendship behavior.The pure friendship behavior and the gentleman's agreement have something in common in the lack of legal constraints,neither of which produces the obligatory performance of the doer or the liability for damages for non-performance.But friendship behavior and gentleman's agreement are different in the basis,application field and other legal effects.Friendship behavior and management without cause are altruistic behavior for free,and the parties of friendship behavior and management without cause with protection obligation do not mean to be bound by law,and the nature of behavior is legal debt.However,they have different bases.The reason why friendship behavior with protection obligation is identified as legal debt relationship is that the close contact between the parties in the friendship relationship leads to a considerable trust relationship between the two parties,and the rights of the beneficiary are completely opened,so the actor of friendship needs to undertake the corresponding protection obligation.The reason for the debt relationship between the manager and the managed is the direct regulation of the law.The difference between pure friendship behavior and non-cause management lies in the difference of legal nature and legal effect.If the former is an act of social intercourse outside the law,and a loss is caused due to the payment of friendship,it shall be liable for damages in accordance with the tort law.The latter belongs to the category of legal debt relationship,applicable to the relevant provisions of debt law.Basic boundary points according to the standard of our country judicial practice is analyzed,the basic features of behaviors that friendship can draw the following conclusion: grandparents to help in raising grandchildren behavior according to the intention between the parties and the related objective standard may constitute a different situation: may be the agency appointment contract,may also be a pure friendship,also may be negotiorum gestio;Based on the particularity of marital relationship,marital gift behavior should not be considered as gift contract,but marital property agreement or conditional property division agreement.Help for farm work is a kind of nameless friendship contract,and its establishment requirements include three aspects: the agreement between the parties to be bound by law,the servility of providing labor,and the control of the aided worker to the helper.However,it is more appropriate to regard the act of taking a co-ride forming a fixed travel community with good intentions as a friendship contract,while the act of taking a co-ride with good intentions is pure friendship behavior.General liability elements of friendship contract include breach of contract,fault and the absence of legal or agreed grounds of exemption from liability.In China,the principle of fault liability imputability in friendship contract is an incentive to altruistic behavior of benefactors in friendship.For the violation of protection obligation not stipulated in the contract law,fault liability should also be applied to imputation.The liability basis of the friendship act with the obligation of protection is "the contact of similar transaction" in the fault liability of contracting,and the form and scope of the responsibility are consistent with the liability for breach of contract.Not only the giver but also the beneficiary should bear the responsibility for the breach of the protection obligation,which can be applied by analogy to the obligation of reimbursement of expenses in non-cause management.There is a legal limitation of liability for the special association relationship,that is,the person is only liable for the intentional and gross negligence or he can fulfill the same duty of care as he handles his own affairs.The difference is that in Germany,the contract of appointment does not limit the legal liability of the trustee,while in China's free commission contract,the liability of the trustee is limited to intentional and gross negligence,which is more conducive to the consistency of legal evaluation.The limitation of liability in contract law can be applied to tort liability,as long as the tort is related to the subject matter of the contract.In addition to the legal limitation of liability,the doctrinal limitation of liability method is also applied to the act of friendship in Germany.They include express exemption agreements,implied exclusion from liability,and other dogmatically constructed methods.Among them,the implied exemption of liability is a commonly used method in German judicial practice,which includes two specific ways: one is the deducible agreement of exclusion of liability;the other is the method of supplementary contract interpretation of exclusion of liability.The implied exclusion of liability applies only to the liability resulting from minor negligence and is generally denied under the premise of liability insurance,and is discussed only in excess of the value of the insurance indemnity.The limitation of liability of the benefactor in the friendship act with the obligation of protection can be analogized to the provisions of limitation of liability in the friendship contract.Due to the lack of clear provisions in the contract law on the responsibility of help contract for farm work,there are corresponding legal loopholes,and because of his helper contract with free agency contract highly similar to those found in nature,so by analogy for unpaid relevant provisions on the limitation of liability of the agency contract,Those who help for farm work caused losses to the workers they help,resulting in compensation liability is only liable for intentional or gross negligence.In the case of congruence and cooperation of liability norms,the legal limitation of liability in the contract of help for farm work should also be applied to the tort liability,as long as the occurrence of the damage in the tort is related to the object of the contract.The constituent elements of tort liability include infringement of legal interest,breach of duty,causality between breach of duty and infringement of legal interest,among which breach of duty includes illegality in fault,so it is necessary to make objective judgment of fault.As a pure act of friendship,the most controversial element of tort liability is the source of the duty of the co-drinker.It should be composed of three aspects: one is the follow-up obligations caused by improper antecedent actions,such as reminders,exhortations,safety escorts and rescues;The second is the obligation of the co-drinker when he/she is in danger caused by the special relationship,which mainly includes care,placement,escort,rescue and so on.Third,due to the illegal nature of the activity itself and the special relationship,the co-drinker's obligation to dissuade other co-drinkers when drinking and driving.Several tortfeasors who violate the same duty of acting shall bear joint and several liability to the victim,and several tortfeasors who violate different duty of acting shall bear partial liability to the victim according to their respective cause and fault degree of the damage.The general principle of limitation of liability of pure friendship acts is that,in principle,there is no limitation of liability to the benefactor,and the limitation of liability in tort liability cannot be deduced from the limitation of liability in friendship contracts.However,when the contractual liability and tort liability are in conformity with the right of claim,as long as the infringing act is related to the subject matter of the contract,the legal liability limitation in the friendship contract can be applied in the tort liability by analogy.In addition,in order to obtain the consistency of legal evaluation and the fairness of the result of case treatment,German courts occasionally exempt the actor from his liability for minor negligence by means of implied exclusion of liability.In our judicial practice,we tend to reduce the responsibility of the benefactor according to the principle of fairness and simple moral concept in civil law,which is worth discussing from the perspective of legal method.The benefactor in good faith of free-riding should bear tort liability for causing losses,while the principle of fault liability is applicable in the judgment of tort liability,and the tortfeasor can reduce the liability only under the case of minor negligence according to article 1217 of the Civil Code.The liability of the infringer may be reduced under article 1173 if the fellow passenger who is the victim is also at fault for the creation and extension of the loss.In cases where the victim is negligent,the proportion of liability between the tortfeasor and the victim shall be allocated first,and then the tortfeasor shall be reduced in accordance with article 1217.When applying article 1217,it is necessary to grasp the applicable conditions accurately.In particular,it is necessary to note that the limitation of liability to the benefactor in good faith of free-riding is only limited to the mitigation of liability for minor negligence rather than the exemption of liability. |
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