Study On The Limitation Of Duty Of Care In Co-drinking Behavior

In recent years,there have been more and more tort and damage disputes caused by co-drinking behavior in judicial practice.For a series of problems such as how to determine the liability bearers and how to divide the liability for compensation,the judges all feel the absence of relevant laws,resulting in the result of different judgment scales.Most courts give too much consideration to the relief of the victim in the disputes caused by co-drinking,and ask the drinker to assume certain responsibility for failing to fulfill the duty of reasonable care,so that the public has many doubts: what is a "reasonable" duty of care? What is the reasonable range of duty of care? Should the drinker be held liable for failing to perform his duty of reasonable care as long as the drinker is injured?The above doubts have a negative impact on the normal communication of the public,and they restrict the freedom of the public too much and increase their burden,leading to the abuse of tort cases caused by drinking.Therefore,it is necessary to clearly define the "reasonable scope" of the duty of care of co-drinkers in joint drinking behavior,and make an in-depth analysis of the limit of the duty of care,so as to provide theoretical support and referee scale to judge similar cases.This paper analyzes and sorts out the judgment documents of the disputes caused by co-drinking in the past five years,and studies the limit of the duty of care in co-drinking with the problem of how to allocate the tort liability.This paper consists introduction,body and conclusion.The body consists of six chapters:The first chapter,based on the investigation of co-drinker's duty of care in the judicial practice,According to the social investigation to understand the public's perception of duty of care in co-drinking behavior,found that the co-drinker's duty of care has the tendency of generalization and expand,to defining the scope of reasonable duty of care for co-drinker,so it's necessary to research on the problem of limit.The second chapter is the first level to define the limit of the duty of care,that is,whether the co-drinkers have the duty of care in co-drinking behavior? Through the common properties of the duty of care in co-drinking behavior,source,such as the scope and connotation,discusses and analyzes the theoretical basis,determines co-drinker owes a duty of care under certain conditions in co-drinking behavior,clear co-drinker's duty of care including warned,matter dissuade and afterwards relief the connotation of the three aspects.The third chapter is the second level to define the limit of the duty of care,that is,what proportion of the drinkers' failure to fulfill their duty of care account for their responsibility? Does the drinker assume primary or secondary responsibility? On the basis of the principle of general fault imputation which determines co-drinkers liability,Combine the causal relationship between co-drinker's failure to perform his duty of care and the consequence of damage,the limit of the drinker's liability for tort is determined to be 30%.The fourth chapter is the third level of the definition of the limit of the duty of care,that is,the size of the duty of care of the co-drinker.Firstly,three basic principles are determined to judge the reasonable scope of the duty of care.The second,through the investigation of the judgment standard of the violation of the duty of care in civil law and Anglo-American law,a dichotomy judgment standard suitable to deal with the violation of the duty of care by the drinkers and co-drinkers is concluded.According to the identity,occupation and behavioral capacity of the drinker,the fulfillment degree of the duty of care was expounded.The fifth chapter is the fourth level to define the limit of the duty of care,that is,how to exempt the co-drinker? To discuss whether co-drinker's duty of care and tort liability can be exempted.Through the analysis of the nature and purpose of the co-drinker's duty of care,we can sure that co-drinker's duty of care cannot be exempted,but the exemption of tort liability is legitimate and necessary,and the validity of the exemption agreement is discussed.The sixth chapter combines with the specific cases in the judicial practice,carries on the practical application to the above limit theory,and summarizes a set of guidelines for the review of the duty of care of co-drinker for practical reference.