The Study On The Tort Liability For Co-drinker’s Personal Injury Caused By People Related To Co-drinking Behavior

From the aspect of legal nature of co-drinking behavior,this paper argues that co-drinking behavior does not belong to factual behavior and legal behavior,but belong to friendship behavior.Because there is no indication of legal consequences about this behavior,and it can’t cause legal consequences,so co-drinking behavior can only be an antecedent act.Once co-drinking friendship behavior causes the danger or personal injury of drinkers,the corresponding specification of tort liability will take into effect.Under such circumstances,co-drinking behavior may be considered as civil factual behavior,that is,antecedent act can also be obligation.Which kind of obligation does it belong to in tort Liability?This paper considers it as security obligation.Although in our tort law,security obligation limits the subject of obligation,but from the aspect of theoretical source,it is security attention obligation developed by case law by German judges for those who reasonably trust that their actions will not damage others.Therefore,on the interpretative level,this paper attempts to expound the subject of obligation to include co-drinkers.Through the first part of the argument,co-drinking behavior causes security obligation,and a breach of this obligation may give rise to tort liability.There are three imputation principles of tort liability:no-fault liability principle,fault liability principle and fair liability principle.From the perspective of three imputation principles,it is most reasonable to determine the principle of tort liability of co-drinkers in the co-drinking behavior to be the principle of fault liability.During the implementation of the co-drinking friendship behavior,if the actor makes mistake subjectively which causes damage to co-drinkers and exists a causal relationship,he shall bear the corresponding tort liability.From the perspective of constitutive elements of tort liability,the antecedent behavior caused security obligation with the main contents of care,rescue and warning.Co-drinking actor has subjective overconfidence or negligence,and causes damage to the body or property of the drinker.From the perspective of causality,the co-drinking actor did not violate the relevant security obligation,then the result of the damage can be avoided,or the extent of the damage can be reduced.Therefore,it should be considered that there is a causal relationship between the two.As for the occurrence of damage consequences,whether ordinary people in society could foresee it has become a criterion to judge whether the causal relationship is interrupted.Since the co-drinking behavior is likely to be the joint infringement of the majority,the responsibility pattern and proportion of the co-drinkers should also be considered.Liability can be divided into joint liability and shared liability,but joint liability is too excessive for joint drinkers,so this paper believes that joint drinkers should bear the responsibility according to their share.In shared liability,how should the responsibilities among actors be distributed?The responsibility of co-drinkers should be divided in proportion.If there is a third party other than the co-drinkers involved in the damage,then impaired drinkers,the third party who directly infringes and co-drinker should share the responsibility according to their respective causes of the damage consequences.According to the fault level,the third party who directly infringes shall bear the main tort liability,the impaired drinker bears secondary liability,while the co-drinker bears minimal tort liability.If there is no third party,other co-drinkers fail to fulfill the safety and security obligation,they are wrong subjectively,and should also bear secondary liability.For those who proactively persuade,gamble and compete for wine,as well as the organizers and invite people of the banquet,their tort liability should be higher than those who merely fail to fulfill the obligation of safety protection.Under the system of existing law,in terms of the tort liability of co-drinkers,this paper considers that the following optimization should be done:First,the principle of presumption of fault should be adopted as the principle of imputation in the case of personal injury caused by co-drinking;Second,according to the age,knowledge,experience and conditions,the actor is deemed to have fulfilled his security obligation if he takes common actions to avoid the occurrence of risks under similar circumstances.Third,if the situation is beyond the scope of foresight,then co-drinkers are exempt from liability.