Research On The Legal Issues Of Exemption From Emergency Assistance Behavior

At present,in order to encourage voluntary felon-fighting and uphold social justice,China's general provisions of the civil law added the "good man clause".In an emergency situation,A rescuer's willingness to help others out of danger is ethically regulated,but is now subject to legal regulation.The law gives preferential protection to the rescuer,and relieves the rescuer of worries.To some extent,this approach can achieve the value goal of encouraging bailouts,However,whether the absolute exemption is reasonable still needs to be demonstrated.Based on the current situation of legislation and judicature in China,this paper analyzes the legal nature of emergency relief,draws lessons from foreign legislative experience,and proposes some ways to improve the exemption of emergency relief in China.In addition to the introduction and conclusion,this paper consists of five parts:The first part,"overview of emergency relief",firstly defines the meaning of emergency relief.If the act of emergency relief is to be established,it must satisfy the constitutive requirements that the actor is voluntary,the situation is urgent,to avoid damage expansion,and the subject of the act is a natural person.Then,the current legislation on emergency relief in China is sorted out.Before the promulgation of the general provisions of civil law,China had tentative provisions on emergency relief in the voluntary felon-fighting system and local legislation.After the general provisions of the civil law was issued,it was further stipulated in articles 183 and 184 of the general provisions of the civil law and in the contract part of the civil code(draft).Finally,it will explore the theoretical basis of the exemption of emergency rescue behavior.The exemption of liability for the damage caused by the emergency relief agent to the aided person conforms to the justice of correction,conforms to the principles of law and economics,and also embodies the principle of interest balance.This will set the stage for the discussion later in the article.The second part is "comparison of emergency relief system with other civil law systems".This part distinguishes between emergency relief and some similar civil law concepts.Emergency relief and justifiable defense,emergency avoidance and causeless management under article 121 are all concepts related to the rescue of others.There are some correlations between these concepts,but there are also differences.This part has carried on the discrimination to the related concept.The third part is "the realistic dilemma of China's emergency relief act exemption".This part summarizes some problems encountered in legislative and judicial practice.At present,China adopts the legislative attitude of absolute immunity in emergency relief.This rule impinges on the uniformity of the legal liability system.The competition with causeless management leads to the application difficulties.If the absolute exemption limit is reduced to general negligence exemption,the distribution principle of the burden of proof should be determined urgently.In the judicial aspect,the provision of absolute exemption reduces the duty of care of the salvor.Moreover,the scope of the exemption subject is not clear and the identification of "emergency" is not clear.The fourth part is "extraterritorial legislation of emergency relief and its inspiration for China ".This part analyzes the legislation status of the civil law system and the Anglo-American law system in the aspect of emergency relief,and extracts the legislative experience and enlightenment for our country.The fifth part is "the way to improve the exemption of emergency rescue in China".On the basis of the above research,this part puts forward some Suggestions on the exemption of emergency relief in China.In terms of legislation,the exemption rule should be limited to general negligence exemption.The scope of application of the emergency relief exemption clause should be made clear,that is,the emergency relief exemption is only applicable to the scope of personal injury,and the liability of the salvor when he abandons the rescue midway should be made clear.In addition,the allocation principle of burden of proof should be made clear.In terms of judicial application,it is necessary to clarify the determination of "gross negligence",the subject of exemption and "emergency".Such provisions can better achieve justice and achieve the goal of encouraging the value of aid.