On The Necessity Of Attacks In Civil Law

The inculpatory act of rescue,which is one kind type of the private strength relief, not only has the vital significance in the real life, but also is an important legal regime. At present, our country's the legislation and the fundamental research about the inculpatory act of rescue is imperfect, there still has many pending disputes and question needing to solve. In order to consummate related system of the inculpatory act of rescue in our country ,this article sets out from the concept of the inculpatory act of rescue, the constitutive requirements, the valid foundation, and the choice of mode of rule of conduct, and bases on using the related foreign legal practice and the theory for reference.Although the explicit stipulation on the type division of the inculpatory act of rescue doesn't make in our country's legislates, but in view of civil liability of the inculpatory act of rescue stipulated by the legislation, as well as the related legal precedent and the theory, it's considered that act of rescue contains two kind of types, that is, recovery act of rescue and inculpatory act of rescue.There have three theories with regard to the valid basis of inculpatory act of rescue: subjectivism doctrine, the benefit weight doctrine, and the laissez faire behavior doctrine. But they cannot explain completely the valid basis of t inculpatory act of rescue. This article sets out from human nature foundation of selfish and altruistic nature, takes the legislation goal of inculpatory act of rescue as the judgment standard, and has proven the necessary and the valid basis of inculpatory act of rescue.The victim in the inculpatory act of rescue, whose legitimate rights and interests becomes victim only due to the accident situation, is an innocent the third person, therefore Romano-Germanic family and Anglo-American law system countries generally entrust the victim with the independent strict responsibility request power. Our country's legislation has the slight difference, according to "the General provisions of the civil law" and the related judicial interpretation, the victim only can request the person causing the dangerous situation to undertake the responsibility or request the beneficiary to undertake the proper civil responsibility. This kind of stipulation is quite disadvantageous to the victim, often produces the unfair result, and also can't realize the civil liability function of filling up the harm.The conduct mode can divides into three modes, that is, the self-regard conduct mode, the altruism conduct mode, and the combining self-regard with altruism conduct mode; three conduct modes have its reasonable basis. But we should apply with the different conduct modes basing on different conducts, which has dissimilar type and temperament. According to the characteristic of the inculpatory act of rescue, I think the combining self-regard with altruism conduct mode is favorable mode to adjust the inculpatory act of rescue, can realize the litigant's benefit to be balanced in the inculpatory act of rescue, realizes the litigant's rights and obligations to be equal in the advantage exchanges, realizes the legislation goal which the legislation pursues about the inculpatory act of rescue.The inculpatory act of rescue can divide into the inculpatory act of rescue which implements for oneself benefit and the inculpatory act of rescue which implements for other people's benefit because of the benefit which its protects differently. In the different situation, the litigant's civil liability is also different. In the inculpatory act of rescue which implements for one benefit, emergency people should carry on the complete compensation to victim's loss, no more than the people who bring about the dangerous situation is existence; the emergency people merely undertake the supplement responsibility. In the inculpatory act of rescue which implements for other people's benefit, the key question should solve is how to deal with relation between emergency people and beneficiary. In order to promote fusion between the legal standard and the social value, set up the good society morality, and establish the health moralism in the society, it should apply with spontaneous agency in the situation of inculpatory act of rescue which implements for other people's benefit.