Research On The Tort Liability Of Friendship Behavior

Mutual aid and reciprocity exist widely in the real life,the nature of this behavior with ethics can be regarded as 'friendship behavior'.Friendship behavior as a vivid reflection of social life,makes the traditional virtues of helping others to be showed incisively and vividly.Friendship behavior is not only the frontier issues of civil law in recent years,also a new system in the judicial practice.But for the tort liability disputes triggered in the process of the friendship behavior,legal system of our country is lack of clear and unified rules,resulting in lacking of legal basis for the judicial organs in solving such disputes,causing the maintenance of power and protect the legitimate rights and interests of the parties of a bit weak as well.Thus,it is necessary to conduct in-depth analysis of the theory of friendship behavior,and explore the corresponding dispute settlement mechanism to make up for the gaps in the system of tort law,also provide legal support for judicial officers judging similar cases.The paper uses case analysis method,balancing of interest method,comparative research method,follows the route from friendship behavior definition to the cognizance of friendship tort,to determination of the friendship tort liability.The structure is mainly divided into five parts,specifically includes:The first part,raising the problem.Quoting two cases in real life,namely 'Chongqing drinking banquet lethal case' and 'Yiyang,Hunan province riding causes the lawsuit case',leading to the central argument and the problem to be solved.Since the fact that the judicial officers have different cognition of the nature of friendship behavior in the two cases,causing the judgments about Gefalliger's liability,the basis and share of tort are different.The second part,the definition of friendship behavior.By listing many expressions about foreign scholars and the Taiwan region of China on the 'gefalligkeiten,meaning,combined with China's social background,historical and cultural traditions and other related factors,the friendship behavior is defined the social behavior by moral adjustment,not equipping legally binding.However some scholars define friendship behavior as the legal act,and put forward several theories,for example:contract theory,quasi contract theory and so on.The third part,method and identification of friendship behavior into friendship tort.Friendship a social life behavior,is constrained by moral and daily life etiquette,but if one party suffered damage resulting in significant imbalance in both parties' interests during the process of behavior,the original 'outer law space' friendship behavior whether has been transformed into'the scope of tort regulation',then it can be identified though the balancing of interest method.Balancing of interests in two countries of Germany and Japan as the representative,they have different criterion and considerations,should be critically learned and used.Filtering the friendship tort that belongs to legal regulation by utilizing the value judgment in balancing of interest,in order to deal with the subsequent problems through the corresponding law system.The fourth part,analyzing the damage liability of friendship tort.Friendship tort and general tort is different after all,it has its own special elements based on constitutive component of general tort.The imputation principle and standard for friendship tort liability main includes two views:intentional or gross negligence principle and the general negligence principle of intentional or gross negligence principle can not fairly and reasonably balance both interests.The general negligence principle should be the friendship tort imputation principle,and the 'rational person' standard puts forward higher safety obligations on the parties,more in line with the basic value of the civil law and can reasonably allocate responsibility of both parties.Furthermore,considering the particularity of friendship tort,if gefalliger has impediment of the corresponding responsibility,that can reduce or exempt tort liability,specifically including:contributory negligence,affection factors,force majeure,accident victim and pure economic loss.The fifth part,the friendship behavior in the setting of civil code in the future.Legal behavior has been fit in the general provision of Civil Cord.The theory of friendship behavior is derived from social life and full of vitality,it inextricably links with legal behavior as well,so it ought to has a space in future civil code.Fitting the friendship behavior into the specific provision of civil code,not only has theoretical value for improving the tort liability law system,also is an effective way to show Chinese traditional virtues to foreign.