| As one of the solutions to the conflict of rights,the system of emergency avoidance plays an active role in the settlement of rights disputes.Due to the flaws of the rule,the theories and the limitation conditions of the system causes wide disputation over the world.To research limitation conditions,we′d better start to comprehend the nature of the system.The first chapter of the essay mainly introduces several theories of the system and measuring means of reasonable limitation.According to the laws of different countries,the Theory of Benefit Measurement is their commonly accepted opinion which causes many branch theories such as "Violation Prevention Theory" 、 "Responsibility Prevention Theory" 、“Compromise Dualism Theory”、“Beyond Law Theory”、 “Interests Sharing Theory”。they contribute a lot to the discussion and development of the system.As to the legal interests,the essay divides them into private and public.By means of legal rights measurement,the essay sums up the limitations into four influential theories as "Lesser Harm Theory" 、 "Lesser and Necessary Harm Theory" 、 "Equal Harm Theory" which all have shortages,and cannot cope with the true cases.I support the “Equal and Necessary Theory”which is more reasonable and covers all above three theories.With regard to the flaws of the rule,the singularity measurement、dubious meaning of the reasonable limitation、negative and positive judging inclination over private legal rights and public legal rights are analyzed in chapter two.Chapter three mainly discusses different legal rights conflict judging over the reasonable limitations.In this chapter,the life rights conflict is divided into single life conflict and dangerous community life conflict while the latter is seriously emphasized from two different dimensions,one is enacted by private subjects,another is enacted by public subjects.The theories esp.developed for the life conflict are also introduced from the vision of theoretical understanding.Concerning the limitation theories about dangerous community life conflict,I advocate "Equal and Necessary Theory" which covers above three theories’ advantages and avoid their blemishes.At last combined with "Social Joint Responsibility Theory","Equal and Necessary Theory" could provide a reasonable basis for transferring life interest loss especially from a dangerouscommunity.Finally,while recognizing the problems in identifying the limitation of the cases,I also propose several judicial advices for the system in the conclusion part.First is to alter “avoiding action” instead of “emergency avoidance”.Second is to alter“obviously over reasonable limitation” instead of “over reasonable limitation”.Third is to alter “serious damage” instead of “undeserved damage” so as to make the law play its guiding function better. |
