The Burden-Sharing Mechanism Of Civil Emergency

In recent ten years,the research on the civil emergency risk aversion in China's civil law circle is obviously insufficient,and relevant literature is scarce.However,the data shows that there are more and more cases of civil emergency risk aversion,it is of practical significance to study the civil emergency risk aversion system.The disputes about the attribute of civil emergency behavior in the civil law can be divided into legal behavior,illegal behavior and laissez-faire behavior.Although some scholars think that the doctrine of laissez-faire makes the mistake of “sitting on the fence” in law,the author thinks that the emergency hedging behavior is more consistent with the civil law system of Our country.The civil law places civil emergency provisions in civil liability rather than civil rights,which also indicates that risk aversion is illegal.The author argues that risk-averse people should bear the responsibility.China's civil law has the precedent of explicitly stipulating the liability of the person avoiding a risk.The second paragraph of Article 129 of general Principles of the Civil Law has the precedent of stipulating the liability of the person avoiding a risk.However,the change of paragraph 2 of Article 182 of the Civil Code that “the risk-averse person is not liable but can be compensated appropriately” is the embodiment of the system of “force majeure” and “fair responsibility” in risk-aversion,and cannot be regarded as the basis for the risk-averse person to avoid liability.The author tries to construct a new responsibility sharing system based on false joint and several liability.Even if the party who cause the risk can't pay for damage,the emergency people may request the beneficiary to compensate according to the causeless management system.If a risk taker suffers damage during risk aversion,he may either request the party who cause the damage to bear or request the beneficiary to compensate according to Article 183 of the Civil Code.According to the theory of social joint liability,the adverse consequences of the risk-averse behavior are distributed to the victim,with the beneficiary,the party who cause the damage and beneficiary sharing the responsibility,the risk-taker bearing the absolute compensation responsibility,the emergency people bearing the procedural obligation and the beneficiary bearing the compensation obligation under special circumstances,so as to reduce the victim's obligation.The distinction of civil punishment in the emergency is also a problem that needs to be paid attention to,which involves the coordination and consistency of the legal system.The author thinks that the civil law and criminal law should be consistent in the identification of emergency risk aversion in order to solve the case of criminal emergency risk aversion involving incidental civil compensation.