Tort Liability Of Friendship Behavior

In our real life following circumstances often occur: treating friends, colleagues for dinner, helping neighbors to take care of children, for friends to buy the lottery, so encounters and so picking up a hitchhiker. German civil law doctrine of precedent to acts such as these call Gefalligkeitsverhaltrtis. Germany, China and France scientists Medicus in the "German civil law general remarks," Such behavior will be called "friendship behavior." Since the German jurist Jhering since many jurists will be "friendship act" theory as Germany and France on Pendock Dayton jurisprudence scholars sustained criticism for the enormous achievement.It is based on German civil law system based on thorough research and close ties with the social reality of the theoretical results. Nature of the act for friendship friendship behavior as a result of damage to fruit and then after disputes Responsibility and Liability of principle, the theoretical circle is hard to determine, the judicial practice and no unified operating system. The objective of this paper is to act on the concept of friendship to explain the same time, a clear fault in causing damage due to the nature of violations, and further analysis of violations of friendship should be the appropriate legal basis for mitigation of responsibility. Specifically, this line of thought and logical structure is as follows:Chapter One Definition of Friendship BehaviorActs mainly to clarify the definition of friendship, friendship type of behavior and feelings distinction between acts and legal standards of conduct. First, the "feelings of conduct" is not a well-established concept that originated in civil case doctrine in Germany, so whether it is the "German Civil Code" or the German court did not directly act on the feelings of a clear definition is given, but this led to only through friendship and legal acts of the contrast, to explain whether an act should be defined as acts of friendship or a legal act. Second, German civil law doctrine and jurisprudence once believed that in defining the legal boundaries of behavior and feelings act on this issue, we should first look at the perpetrator, in the behavior of a corresponding meaning. This means that people are willing to accept legally binding acts of meaning, or hope that the legal consequences of their behavior means. Later, the German courts in the judicial practice, gradually developed a distinction between legal acts and acts of friendship of two criteria: subjective criteria and objective criteria。Chapter Two Friendship Discrimination of Tort Liability Act.To analyze the nature of civil liability for acts of friendship, friendship is first necessary to analyze the relative behavior of actors who requested friendship liability claim basis. The nature of friendship behavior in the discussion of legal liability that may involve a lot of legal issues, such as contracts, torts. Some scholars believe that in particular, can act as a friendship, or that the fact that the contractual relationship. For this view, I do not agree. Friendship acts, while the shape of a contract, but in reality do not have the contract. Contract is the product of party autonomy, but its legal effect is expressly provided by law,The parties entered into the contract and must create a legal relationship or intention to produce a legal effect, and the friendship actors are generally good morals the people, whose implementation of the act of friendship is not the purpose to produce legal effects, but for moral good, which therefore does not arise between the parties, breach of contract. Friendship behavior does not occur between the parties legal binding, it is only in terms of the contractual obligations. No contractual relationship for the "stranger", the friendship perpetrator is still "strangers" absolute obligation to the interests of people. When they violate the corresponding legal obligations or some attention to meaningServices extent which rendered "strangers" absolute rights of persons or property damage, the still have to bear the corresponding legal responsibility, that tort liability. This author's view is that the nature of friendship behavior liability tort liability but not the breach of contract.Chapter Three The Right Infringement Recognized of Friendship BehaviorI think that friendship violations of tort liability should apply the principle of fault liability attributable to, and not the liabilities on the general's fault, but a major fault Fixation. The reason why friendship violations of tort liability should apply the principle of fault liability, the theory has three factors: First, morality. Individual acts on his own fault liability for damage caused, this is the demand of justice. And if the behavior of non-out wrong, the perpetrator has done to the duty of care, no moral censure, since not assume any liability for infringement. The second is social value.Any law must reconcile the "personal freedom" and "social security" two basic values. Principles of Responsibility fault is considered the best system for this task, because the individual if it has to do its duty of care that do not bear tort liability, the unfettered freedom, people's intelligence to play. Everyone doing their attention, general damages can be avoided, is enough to maintain social security. Third, human dignity. The principle of fault liability attributable to certain people's freedom, recognition of personal choices, ability to distinguish right from wrong. Therefore, based on their personal freedom means doing any act causing damage, because there is fault to bear tort liability, sufficient to show that respect for human dignity.As the strict distinction between the principle of fault liability against the fault of the victim's fault. In the principle of fault liability, the "fault" is against people's fault, not including other people's fault. In other words, tort liability is recognized as against people based on whether the fault. Therefore, the principle of fault liability attributable to only consider the violations of people's fault, regardless of the third person and the victim's fault. The fault of the victim and the third is to remove or mitigate against people justify tort liability, rather than the responsibility to determine whether the violation is based. Specific to the feelings of violation,Friendship friendship perpetrator acts in the implementation of well-intentioned mistakes does not exist, but in its implementation process of friendship behavior to the relative fault of people because of their legitimate rights and interests of civil damage, of course, should bear tort liability, tort its commitment required at this time responsibility is based on the occurrence of the consequences of his damage at fault, with his initial "good will" has nothing to do. As to whether the relative fault of friendship behavior is not to determine whether the necessary conditions for tort liability, but rather to determine whether to remove or reduce the feelings of the perpetrator to justify tort liability.Chapter Four right infringement responsibility Avoids and Reduces of friendship behaviorIn my view, tort liability exemptions friendship behavior, mainly refers to the feelings of the subject of infringing people's defense, that friendship can tort claims based on the specific reasons to remove or reduce civil liability. After all, the implementation of feelings of friendship actors act out of good intention, is also helpful to play the traditional virtue of their behavior and subjective state of mind can not blame nature is, after all requirements in the event of damage liability friendship regardless of the perpetrator legal aspects of a moral level or there is unfair and will surely make friendship actors lend a helping hand in time be taken into account,Against each other to help, helpful good social atmosphere outside. Therefore, I believe that the perpetrator than friendship there is intent or gross negligence of the tort liability shall not be exempt in advance, the feelings in the following voluntary risk-taking behavior and feelings of relative relations in pure economic loss only be the case, people should be exempted from infringement friendship civil liability.By comparing the provisions of national legislation, the author found that most of the feelings of the perpetrator was attributable to gross negligence standard, the majority of feelings actors often assume responsibility for gross negligence. The reason why national legislation, The reason I think that, in addition to considering the feelings of the perpetrators and those who are not in a take a mandatory binding legal relationship, there is a deeper reason, that is the law on compensation services free help with duty of care required is different. Duty of care, and social life is the law and regulations required for certain actions or behavior need not necessarily be cautiousTo avoid harm results to the responsibility. A duty of care, and did not do this kind of obligation, it is the fault of civil law, shall bear corresponding civil liability. Free to help the duty of care owed to the person than the paid services light, has a paid service people should handle their affairs with the same attention. In other words, be as cautious as handling their own affairs, care to help people free of charge as long as the process of dealing with matters to do due to a general need for attention will not have responsibility. Also, people should take responsibility to help free the case, because it is free of charge and can reduce liability.