Research On The Infringement By Co-drinkers’ Omission

Different decisions differ in whether the co-drinkers constitute the infringement by omission. Some decisions hold that drinking itself is an man-made act resulting in danger, the co-drinkers have the legitimate duty of care to the other parties in the specific dangerous act, which includes the duty of reminding and advice, timely notice and even assistance, caring and help, that is to say, the co-drinkers shall assume the maximum subordinated obligation. If failing to assume the duty of care by ordinary people, the co-drinkers shall be held for the careless and inadvertent negligence in the subjective aspect. Some decisions hold that co-drinkers shall only assume liabilities for the consequences of damage predictable by ordinary people under normal circumstances; however, if the death of the aggrieved causes the difficulty of the family life, even if the co-drinkers have no fault, the co-drinkers still bear the appropriate loss of the aggrieved according to their economic situations and the actual conditions. Some decisions hold that drinking is a common phenomenon in the daily life. As a person with full capacity for civil conduct, the actor shall assume the maximum duty of care to his/her health and life security and shall predict overdrinking shall have adverse consequences on the health and even life and thus drink moderately and avoid overdrinking, therefore the co-drinkers shall not assume the liability for compensation. This paper makes endeavors to demonstrate whether the co-drinkers shall assume the duty of care, the scope thereof and the limit of the civil liability with the infringement by omission arising from the antecedent act. This paper holds that the co-drinking whether entertaining others or normal social interactions between the adults belongs to the legal acts and the co-drinking itself shall produce no civil liability. The person with full capacity for civil conduct shall be fully aware of the likely consequences from co-drinking and shall be responsible for the voluntary drinking. Therefore, the co-drinkers shall have no obligation of reminding between them. The co-drinking itself is not an antecedent act; however, if there is drunkenness or obvious physical discomfort, the co-drinking shall produce the duty of act. Therefore, the inviting party and the co-drinkers have the obligation of help when finding others drunken and unable to control themselves and have the obligation of prevention from the act with high danger by the drinkers. The inviting party is the organizer of the drinking and thus he/she shall not only have the duty of care for the safety of the ordinary co-drinkers but also have the security responsibility beyond the ordinary co-drinkers owing to the dominance and control of the organization and invitation over the drinking. If the co-drinkers cause the consequence of damage arising from the failure to perform the duty of act from the antecedent act, the co-drinkers shall constitute the infringement by omission and shall assume the relevant civil compensation liability. It is worthwhile to note that whether the inviting party or the co-drinkers have certain close relationship with the aggrieved of some kind. Therefore when dealing with the various infringement cases arising from the co-drinking, we shall implement the principle of mediation coming first and strive for making certain compensation for the aggrieved so as to realize the unity between legal effect and social effect.