Research On Tort Liability Caused By Friendship Behavior

Friendship behavior is a free and altruistic behavior without the intention of forming relationships between rights and obligations in civil law,and it is aimed to establish, protect or strengthen beautiful feelings of human beings. This concept originated from the discussion of legal precedents. While it is called Gefalligkeit in Germany, it is translated into friendship behavior by scholar Jiandong Shao in China in the book German civil law general remarks. Friendship behavior is very common in our daily life,such as allowing colleagues to take a ride,inviting friends for dinner,helping neighbors to take care of children.This paper focuses on the definition of friendship behavior and the analysis of its legal consequences. On the one hand, the paper aims to definite friendship behavior completely, and discuss on its characteristic and position in law system. It is helpful to recognize what can be defined as friendship behavior in judicial practice. On the other hand, by studying on cases, this paper classifies the types of legal duty which is caused by friendship behavior, and try to solve it in the most suitable method. It intends to establish legal system to clearly solve the problems caused by friendship behavior.From the structure of the paper, it can be separated into four parts. The first part is the overview of friendship behavior. This part gives the definition of friendship behavior in daily life and elaborates on its three legal characteristics. Based on the definition, this part then discusses about the differences between friendship behavior and juristic act and the differences between friendship behavior and factual action,and sum up to the conclusion that smoothly completed friendship behavior is the space out of legal regulation. The second part is the analysis of the kinds of legal duty that is caused by friendship behavior. This part begins with six relevant cases of friendship behavior ( including kindness abroad, drinking together and giving gifts ),in order to draw forth the following professional analysis of tort liability in the disputes. The third part analyses how to assign tort liability in the disputes caused by friendship behavior. In the circumstance that assistance providers damage the benefit of assistance recipients,the civil responsibility of infringers can not be exempted merely because of friendship behavior. According to the principle of liability for wrongs,whether tort liability is established or not depends on the analysis of components of tort liability. Then, this part introduces the factors influencing liability exemption or mitigation, especially the friendship factor. The fourth part introduces present legal conditions about friendship behavior in our country, and accordingly provides some suggestions. At the moment, the legislation about friendship behavior is still blank, and decree of court vary from court to court. In view of the present situation, this part provides an article of law recommendation, and shows the necessities and rationalities of it. At the end of this part, several suggestions in judicial application are provided with the analysis of judicial cases, in order to accord consistent judgments to similar cases and strengthen legal supervision for equality and justice.