Study On Several Issues Of Civil Necessity

Civil Necessity is to point to in order to make the public interests and the legitimate rights and interests of oneself or others from happening pressing,the danger of having to prejudice the legitimate interests of others or himself smaller behavior.It is very important for the development of our society and daily life.In recent years,more and more civil cases have been filed in the case of emergency risk aversion.However,in our civil law,there are only a few rules for the emergency protection,and the language is also relatively vague and abstract.Not only does the concept of civil emergency haven't been clearly defined,but there are also many unknown terms such as "necessary limit" and "appropriate responsibility" in the specification.The academic circle is also divided on the definition of emergency risk aversion from the perspective of civil law.This also makes the civil emergency safe haven in the practical life application also appeared some problems.Supreme Court announced in February 2015,the "civil procedural law" article 91 of the judicial interpretation of the allocation of burden of proof has made the new regulation,it also for civil emergency actions had a positive effect in application in judicial practice.The revision of the general principles of civil law in 2017 has made adjustments to the legal provisions and system arrangements of the emergency risk aversion.This revision has improved the existing problems in the application of civil emergency safety,but there are still many deficiencies in the legal provisions and the legislative system.So the author thinks that,it is necessary from academic research to thejudicial practice,on some important problems that exist in the civil emergency actions to comb,on the basis of the combination of academic predecessors view in combination with judicial practice put forward their own views,in order to solve of these important issues put forward some advice to myself.This paper is divided into five parts:The first part is an overview of the basic theory of the civil emergency safety system.Introduces the provisions of the civil law of China and the different definitions of civil emergency;Analyze the different views on the nature of civil act of rescue and put forward their own ideas;Analyze the legal basis of the civil act of rescue;This paper discusses the constitutive elements of civil act of rescue from three aspects.The second part starts from Germany's classification of civil act of rescue.The classification of civil act of rescue in China is relatively simple.According to the different causes of the danger,the act of rescue is classified as emergency which caused by natural causes and emergency which caused by the human action.According to the different types of risk aversion,the German civil code classified the act of rescue as inculpatory act of rescue and defensive necessity.In the Anglo-American law system,it is divided into the necessity of the public interest and the emergency risk for private interests.The third part is the obligation of civil emergency actions.There are two broad categories for aggressive risk aversion and defensive emergency safety.This paper discusses the extraterritorial and domestic civil subjects in these two different situations.The risk-averse person,the victims,the beneficiaries,each of whom shall bear the civil liabilities and the right of ownership would be included.The fourth part discusses the burden distribution of proof of civil emergency.Article 91 of the judicial interpretation of the civil procedure law issued in 2015 makes up for the deficiencies of previous relevant norms.It is based on the principle of specification,and it clarifies the general principle of the distribution of responsibility.It also brings new enlightenment to the civil emergency safety in judicial practice.Based on the legal status of the parties in the emergency,the authormakes a concrete analysis on the distribution of the burden of proof.The fifth part analyzes the shortcomings of China's civil emergency safety system and puts forward corresponding Suggestions...