| The wine seeps through five thousand years’ history of Chinese civilization.From literary and artistic creation,communication and entertainment to cooking,health care,it occupies an important position.Up to now,whether it’s a gathering of family and friends,a wedding banquet or business consultation,it has formed a custom of no wine but no table.However,excessive alcohol intake will affect people’s normal ability of identification and control,and increase the risk of body and property damage of drinkers,which will easily lead to infringement disputes between common drinkers.In judicial practice,due to the lack of uniform provisions in law on this issue,When dealing with such cases,local courts have formed the phenomenon of "different judgments for the same case" : the victim is responsible for himself,the common drinkers should make appropriate compensation,or the common drinkers should bear excessive responsibility.The phenomenon of "different judgments for the same case" challenges judicial authority and credibility.Professor Wang Liming once admitted that "this problem is really difficult".On the basis of learning from foreign advanced theories,the writer comes to conclusion:the duty of care appears because of the advance behavior-drinking together.If the common drinkers violate obligation and make the other drinkers suffer damage,tort of omission appears.Then the writer confirms this kind of tort should apply to principle of presumption of fault.Next,typification analy the constitutive requirements and responsibility.Based on the conclusion of the type analysis,puts forward some suggestions on the legislative and judicial of the establishment of this kind of omission infringement in China,which can unify the judgment standards.At the same time,it can caution relevant actors to regulate their own behaviors,arouse the attention of common drinkers at the broadest level,reduce conflicts and disputes,and build a harmonious and civilized social atmosphere.For this reason,this paper will start with the analysis of judicial practice cases to discuss the tort liability of omission of common drinkers to other drinkers.Expand discussion from the following :The first part is the prolegomenon.It explains the general background and what is the significance of discussing,comments on the existing research,introduces the methods of this article,explains the difficulties in the process of research and writing,and also explains the innovation of this paper.The second part is the introduction of cases.Three cases with similar details but different judgment results are selected from the sample,and introduces the details of the cases,judgment results and judgment basis of the three cases,evaluate each kind of judgment rule,finally summarizes different judgment results and thinks of causes.The third part is to analyze the basic theory of common drinkers’ tort liability.Verkehrspflicht in Germany is introduced in detail.Through the relationship between Verkehrspflicht and the tort of omission,introduces the tort of omission in academic and legal terms,and draws lessons from the legislation of the tort of omission in foreign countries.On this basis,the legal attribute of the common drinkers’ infringement is proved.The fourth part is the analysis of the application of the imputation principle of the common drinkers’ infringement.In this chapter,the principle of liability fixation is determined.The fifth part is the analysis of the constitutive requirements and the type of liability of the common drinkers’ omission tort liability.In this part,the elements of this kind of tort are analyzed one by one,and the possible situations in practice are analyzed.The tort of the common drinkers is main or secondary position,the form of liability between the common drinkers is proportionate,supplementary or joint.Finally,the common drinkers’ tort liability is determined.The sixth part is the author’s legislative and judicial suggestions.Presently,the legislation is also blank.Therefore,in the future legislation,it is necessary to regulate the tort of common drinkers’ omission,provide legal basis for the court to hear such cases,protect the legitimate rights,balance the benefit,settle disputes and maintain of the authority of the law. |
