Research On The Liability Of Joint Drinkers For Tort Damages

Drinking behavior will bring certain harm to the drinker and the public.It is difficult to get relief from other ways for the damage suffered by the drinker,but there is no clear legal provisions to regulate such cases.Common drinking behavior is essentially friendship behavior,which cannot lead to the formation of legal relationship under normal circumstances.However,based on the basic theory of risk society and trust relationship,there is a certain duty of care between common drinkers.If the co-drinker fails to perform the obligation of act or security arising from the antecedent act,he shall be liable for tort.But judicial and academic circles of common drinkers in the basic theory of tort liability does not agree,the reason lies in its differences with the obligation of security positioning,the positioning of the security obligation in China should refer to the German general security obligations,belong to《The Tort Law》37 upper concept,is its status as the duty of the general basis.Through the qualitative research on the behavior of drinking together,this paper holds that it belongs to friendship behavior and it is necessary to regulate the cases of drinking together.The theoretical basis for joint drinkers to assume tort liability should be the security obligation arising from the antecedent act,and the security obligation here is expanded with reference to the "Verkehrspflicht" in Germany.When the behavior of the co-drinker satisfies the principle of imputation of general fault and the elements of establishing tort liability such as fault and causality,it shall be liable for the damage of the victim.There are a number of factors to consider in the division of responsibility for co-drinkers;There is also room for equitable liability in special circumstances.Finally,combined with the problems existing in the judicial trial ofcases caused by joint alcohol consumption,the author puts forward his own Suggestions,in order to provide some reference for the judgment of such cases.This paper is divided into three parts:In the first part,through the three typical cases of drunk driving causing accident,drunk falling and drunk sudden death,it is found that such cases have the phenomenon of "same case with different sentences" in judicial trial,and further summarizes the focus of this paper.The three points of contention follow the logical order of judicial trial: whether the co-drinker should bear tort liability;How to determine the specific proportion of each responsibility subject;if the co-drinker does not assume tort liability can apply the general fair liability clause.The second part mainly analyzes the legal basis of joint drinkers’ tort liability and the determination of the specific proportion of liability according to the dispute focus and domestic and foreign cases and mainstream views.On common drinking the need for legal regulation,the main measures which are in accordance with the leading behavior theory,theory of security obligation will be part of everyone in alcohol drinking and possible risk division to other people drinking,nd leading behavior theory and the theory of security obligation is not the two distinct concepts,dealing with its accurate understanding.In the third part,the author enumerates the enlightenment of the research on the cases of damage caused by joint drinking.To provide typological guidance for joint drinkers to bear the liability for tort damages;In certain circumstances(i.e.,moderate drinking induces concealed illness or leads to sudden death),a general fair liability clause may be considered to relieve the victim.