Research On Tort Liability Of Friendship Acts

Friendship behavior is full of all aspects of people's life,such as the treat party between friends,free ride on others' "ride" and so on.In most cases,this kind of behavior does not appear adverse damage,but the tort disputes caused by the damage of friendship behavior still occur from time to time.Therefore,this paper studies the related problems of the tort liability of friendship behavior,trying to put forward its own thoughts for the fair and just settlement of this kind of dispute.Examining the basic connotation and extension of friendship behavior is the prerequisite for us to analyze the tort liability of friendship behavior.Therefore,this paper starts from the different definitions of friendship behavior in the civil law system,the common law system and the academic circles of our country,and analyzes that the three main characteristics of friendship behavior are the free nature of payment,the non self interest nature of motivation and the lack of expression of meaning bound by law Characteristic and different from the standard of civil legal act and factual act.After defining the concept of friendship behavior,this paper discusses the right exclusion of friendship behavior,and holds that when the friendship behavior is not performed according to the contract,the receiver of the behavior has neither the right to request performance nor the right to ask the actor to compensate for his own loss of trust interests.However,if the act of friendship has been performed,the actor shall not claim the other party's return according to the claim of return of unjust enrichment afterwards.In addition,this paper analyzes the positioning of friendship behavior in the civil law system of our country,and proposes that friendship behavior should be divided into pure friendship behavior and friendship tort according to whether it is successfully completed.Pure friendship behavior refers to a kind of friendship behavior which is successfully completed without causing damage to the facts.It will not cause the establishment,change or elimination of the civil legal relationship between the two sides of the act,and will not produce legal consequences.It belongs to the category regulated by social norms such as morality and custom.However,if one party's interests are harmed by the act of friendship,it needs to be remedied by law,and the act of friendship will change in nature,and the pure act of friendship will change into the act of friendship infringement,which will enter into the adjustment range of civil law between the parties and produce the right obligation relationship of civil law.For the tort liability caused by friendship act,the principle of fault liability should be established first.Due to the gratuitous and non self-interest nature of friendship behavior,the possibility of intentional infringement can be excluded and the fault type can be limited to fault.Secondly,In determining the tort liability of friendship act,it is necessary to have the following four conditions: the damage caused by friendship act is illegal,the damage result caused by friendship act,the causality between the damage result and the damage result,and the subjective fault of the executor of friendship act.At the same time,we should fully consider the particularity of friendship act and make it clear that both parties of friendship act can exclude the possible tort liability by prior express agreement.However,in the case of serious fault of friendship actor,we should not exclude all kinds of damages caused by friendship act by the actor due to the prior agreement of the parties The consequence shall bear the tort liability according to law.In addition,in order to balance the interests of both parties,it is necessary to apply the principle of offsetting negligence,the principle of willing to risk and the principle of fairness to reduce the amount of compensation of the infringer.At the end of the article,in view of the current situation that the current laws and regulations lack clear provisions on friendship behavior,the author comments on the value starting points of the construction of the tort liability system of friendship behavior in our country,such as the appropriate degree of legal intervention in life,the encouragement of mutual assistance behavior of social members,the consideration of the protection of the interests of victims,and the root basis of the judge's exercise of judicial power The tort liability system of friendship behavior should clarify the concept,type and nature of friendship behavior by issuing judicial interpretation;stipulate the duty of care that the friendship behavior person should perform;limit the scope of compensation for the damage of the behavior person;determine the relief rules for the tort liability of friendship behavior.