Tort Law on "partnership" rescue obligations

Keywords: Communication security obligations pArtner assistance reasonably foreseeable at your own risk pArtners help contact security obligations reasonably foreseeable at your own risk

Summary: PArtners Relief obligation is a tort as obligations. People based on shared meaning and engage in certain activities or in a certain environment, one face physical danger, the other pArty should be given assistance within its capacity. Infringement of such obligations is Act on the pArt of communication security obligations or extension of the obligations of freedom and the value of life produces the result of coordination, or reasonably foreseeable can be exempted from obligations to reduce defense aid partners, but at your own risk but does not produce the same effect.



Relief is a partnership obligation as an obligation on tort Law, refers to people based on shared meaning and engage in certain activities or in a certain environment, one face physical danger, the other party should be given assistance within its capacity. Such obligations are tort Communication security obligations on the part of, or extension.

First, the partners aid obligations

(A) of the partners personally at risk

Assistance to fulfill obligations under the premise that partners partners personally at risk, the risk may result in loss of life partners, or physical harm. If the partnership is property risks, the other does not help the obligation to help the person because on the one hand Safety is more important than being the property salvor Moreover, aid is a mandatory obligation as a duty, is the restrictions on freedom of the salvor, a person's property interests and not enough to rescue the human will and freedom to compete. On the contrary, life in the all values ​​in the highest position of living. the right to life no choice, not back, is the source of all rights. loss of life, the right to directly destroy the enjoyment of the subject, and other restrictions on the right, does not affect the existence of the subject. body closely related with the life, physical integrity, and human life have almost the same value, so the Laws of many countries on the life and physical protection given to the highest standards. This high standard of protection, and this fit the theme, showing personal security and freedom, property of the coordination process, showing a dynamic or not the same standard of care and preventive measures.


Under normal circumstances, free and secure a fair degree of coordination requirements than the minimum cost of prevention. When the risk of dispute life and limb may be placed in actual danger of serious injury and increase the cost of prevention when appropriate, fair to reduce the risk of calls for preventive measures. Partners have the obligation is such a case, when life and limb in serious danger of harm, to sacrifice the freedom of the other party as required to fulfill its obligations to prevent damage occurred. The extent to which damage is serious? Answer is: when they will be fundamentally damaged the lives of ordinary people to the process or the pursuit of good time, and to some extent, the payment of compensation or elimination of such damage can not be restored . Death is the standard of serious injury, which led to early termination of life can not get through the payment of compensation and rehabilitation, can not be broken down into many smaller so that it can damage some of the possible perpetrators in the spread between. serious and can not cure the disease and serious and permanent physical injury in severity after the death. [1] In contrast, property damage can be restored by these means, or scattered, which means that property damage was not serious damage to property danger occurs, still only need to maintain a moderate cost of prevention, partnership does not have a rescue obligations.


(B) provide appropriate assistance

Partners, the specific content of the obligation rescue what is most countries have not clearly defined. <<Czech Civil Code>> Section 416 requires the obligor notify the appropriate rescue agency about the risk of serious harm, or in an urgent emergency situation need to avoid such damage as the case actively involved. I think that partnership obligations, including appropriate warnings aid, assistance, notification. First of all, aware of the possibility of partners when faced with danger, should be timely alerts and advice, to prevent the risk of produce. When the danger has occurred in a common environment partner should lend a helping hand, the substantial assistance, the implementation of this assistance both in person, but also to assist partners in danger or professional assistance to third. When damage has occurred, a partner in a common environment should fulfill notification obligations, notify the victim's relatives or public power agencies, professional organizations.


The three obligations, judgments in specific cases, the parties are not the same standard of care to warn the production obligations, the obligor need considerable experience and knowledge as a precondition, to anticipate potentially dangerous, so most people do not have this kinds of obligations, for example, two similar fishing partner, a person familiar with the environment, to the dangerous location of the other fishing partners had to remind the well-known environmental obligations and discouraged, but to fulfill obligations to prevent the risk of occurrence of warning a lower cost, in violation of such obligations usually no reason to exempt. The second duty is relief obligations, it is the core of the partnership obligations, but also carry high costs and risks of an obligation, and thus the obligation to have higher requirements, appropriate, mitigate and remove partners obligations to lower standards. The third duty, at the request of the obligations of low, even minor, such obligations can be generated, for example, two riding a bike home the next night classes of the students together, the dark rows to the bridge was destroyed by a flood after the rain, the line fell into the water in front of those killed, another U-turn to go another way home, tight-lipped about the partner died, the young people's behavior can also help constitute a breach of partnership obligations.


Determine the obligations of the three is the need to pay attention, the first obligation should be noted that the coordination and freedom, warning obligation not stop the obligation, the defendant may face the danger of the victims had to remind and to discourage, even if the victim occurrence, also means that the defendant shall perform the duties of partners. because the defendant no obligation to completely prevent the behavior of their partners, not the actual risk from the material conditions of the defendant may not have the ability to completely stop, there is also a legal obligation to the defendant acts with the victim free of conflict. The second obligation exists to share the risk with the rescuer's own problems. A third breach of the obligation, the fact that there is damage to the problems identified, accused the victims of negligent injuries to fulfill their obligations and there is no causal relationship, or that even if the defendant fulfilled its obligation to inform, but also the victim's injuries have occurred, but not reported to the defendant's hiding, but it caused victims and their close relatives is the spirit of further injury and property damage because, just as the case, high school students for the tight-lipped about the accident companion, a close relative of the victim to pay the victims to find more economic and energy as well as the cost of mental impairment, non-performance of partners should bear the obligation to inform the appropriate responsibility.


(C) is qualified and capable

Partners to fulfill the obligations provided that the conditions and the ability to provide assistance. The world of action many of the most harmful source, are often not those wicked men, but the noble character of idealist who is well-intentioned by those with high but not recognized Shangqie lead to the consequences of their own scholars laid. [2] This requires us to address the obligations of partners, partners to the performance of obligations under the conditions and capabilities, the Law can not ask people for what can not, nor will it encourage or through accountability and encourage people to take risks . In this we should rethink a well-known case of partner relief .2006, a Luo participate in the "donkey" Liang Yijun organization of outdoor adventure activities, event flash floods, the chaos of all self-help and mutual help, a Luo is still dead. the court Liang Yijun due to poor organization decree donkeys bear 60% of the responsibility, the other 15% take responsibility for ALICE. We believe that the case of flash floods coming, in every person's life when faced with disaster, partner assistance obligations out of the question , needs to be stressed is that the present case the decision lies in the lack of results of the accident given the defendant's negligence, without looking at the behavior of the process, that is, whether the defendant rather than help rescue the success of behavioral acts, partners, standards obligations only require the obligor to perform the appropriate rescue actions must achieve relief without the effect of force.


Conditions and capabilities also means that the behavior can not help themselves at risk. "From the moral and philosophical point of view, the Law can not require people to the interests of other people leaving their lives in danger." [3 ] the value of every human life is equal, we can not ask for an individual to sacrifice the life of another individual. self-sacrifice only to the extreme collectivism generated by the development of the moral desire, if we assume that a person of moral their sense of right and Law in the Constitution has the same weight, then in addition to ideological confusion aside, we learn nothing. Therefore, to perform rescue duties to ensure their own safety must be the premise, which is recognized by all countries in the common law principle For example, <<Czech Civil Code>> clear that the intervention will help the obligor or his own people and his close exposure to danger, he may be exempted from the obligation to undertake intervention; <<Portuguese Civil Code> > expressly provided in this aid to help people not to risk exposure is limited.

Links to Research Papers Download http://www.hi138.com Second, the defense obligation to help partners

(A) of the causal relationship

Responsibility in accountability partners, a common defense confused or breach of its obligations as partners with the victim's damage is a causal relationship. Indeed, the partnership is not the source of the risk of injury caused by the victim, partnership obligation has been fulfilled, but no blocking causal relationship between the original trajectory. American "<Restatement of Torts>> the first 452 or even clearly states: a third party failed to fulfill obligations to others, to protect him from this behavior as a threat to human negligence damages to damage than others, an alternative reason. But according to the British case, the reasons for the status and not as a matter of principle there is no difference, although not as a reason in the description, when not to use the "cause" and its adapting and material verbs, while the use of "allow", "not avoid" more accurate, determined in the final causal relationship, whether that damage is not as "not avoid" or to damage "sustained", can not deny the acts of man and not as causal relationship between damage [4].


Meanwhile, leaving aside the theory of causality and found that numerous standards, in fact, causation in tort liability is not founded on less important as people expected. To accidental injury, the people encountered a critical choice, whether it is physical abuse based on the fact that the defendant's responsibility to identify itself, or solely on the basis of a damage can be avoided by proper attention to incidents of this standard to the defendant to be charged appropriately. Some people think that no matter who, as long as the resulting physical damages for his injury should be liable for damages to, while others believe that unless the defendant's conduct demonstrated by the "Note" does not meet socially acceptable "standard." [5] as a partnership, if there is a rescue B obligations, then failed to rescue the former the latter would constitute a cause of damage, if the occasion in the absence of this obligation, he failed to rescue and suffer injuries can not be a reason for the latter. In short, if a bear this obligations, then its omission is the cause of the damage caused by B; if i live with this obligation, its omission is not the reason causing B harm. The most basic point is, in law, not as is not an important causal relationship negates the subject, many are not as the basis for tort liability. must be given the obligation to set good reason exists. [6] the title of causality is only caused confusion, there is no direct claim sufficient reason to set the appropriate obligations will be more clearly and analytically, so the establishment of violation of causality is not partnership can help remove the responsibility of defense obligations.


(B) the reasonably foreseeable

Partners based on objective facts obligations arising as a duty of care, the existence of its obligations and whether the acts of violation also depends on the person reasonably foreseeable. Modern American tort law duty of care are that there are two different perspectives, namely legal obligations and de facto obligations. a legal obligation depends on whether the common law affirmed the obligations involved in the case, without such an obligation, it will because there was no "violation" results without the need to verify the existence of "duty" in violations. the fact is different obligations, this obligation requires specific environmental and individual cases based on whether the formation of the case against the plaintiff's general duty of care, with the occasional such obligations to the offender in a particular case arising under the common law are opposed to " unreasonable "or" abnormal "result as a precondition. In other words, a simple act or omission of the negative, and only in specific cases, into a positive legal obligation or duty to determine, in order to become the basis for liability. [7]

For example, the operator of the responsibility for safety and security of consumers is a statutory obligation to duty, the fact that in the event of damage, whether the operator can review the security breach of this obligation. Partnership obligation is different, because of the specific facts of their production, so the damage occurs, you need to determine whether this obligation has been generated because of this general duty of care and the possibility can not be raised based on theoretical risks, each of damages alone are not enough led to a general duty of care, and a reasonable duty of care is not generally the same as imagined protection obligations. specific obligations to partners, such as a drunken man for drunken partners affect the obligations of the expected level of production factors, a drink and No excess, and in breaking up the people without any signs of drunkenness, partners should not have relief of their obligations; a man down in the water, traveling in an emergency, and can not judge a drowning person is their partner, a group of climbers will encounter the same situation. comprehensive survey, partners have duty of care, depending on the perpetrator made conditional to the fact that reasonable expectations: (1) Who is the victim; (2) dangerous probability of occurrence; (3) damage level; (4) the victim's loss prevention capabilities; (5) to prevent the possibility of damage; (6) own risk. Of course, reasonably foreseeable is not a simple mathematical calculation, nor shall the defendant's personal views may be, but usually, from the knowledge and universal experience, an objective reasonable person in defendant's position reasonably foreseeable done. or the sum is feasible, and a more sensible, prudent and cautious person, in the under the control of reason to protect others from harm that is necessary and sufficient. [8] if the specific circumstances to make a rational and objective partner to the above problems can not reasonably foreseeable, the partners have no obligation.


(C) own risk

Obligations of the partners, but also the existence and availability of risk associated with the source? There are several sources of risk, one is a natural reasons, such as mountain climbers encounter avalanche; the other is the third reason If partner suffered a car accident or other criminal violations; its third party partners to each other causing damage to the other; its fourth partner from the victim's own reasons, such as suicide, self-injury, drug addiction, alcoholism, etc., the disease is not unexpected classified as such, because patients can not control the will of its own, should belong to a class of natural causes; fifth case is the activity or the environment inherent risk, but the victim took the risk, such as outdoor adventure and so on. partners in relief duty The main case for the first and second, its not just reasonable doubt. In the third case, because of the danger of the victim caused by the partner, and its obligation to help the victims no doubt that the actual obligation do not belong to partners, but on the perpetrators of the victim assistance obligations, their obligations arising from harm to its previous behavior. we need to explore is the fourth and fifth cases, the danger caused by the victims themselves, or the victim are willing to risk, whether the aid partnership obligations.


In short, a suicide, partners have assistance obligations? The answer is yes. It seems with the existing law in contradiction, because of <<Tort Liability Act "> Article 26 and Article 27 provides:" The infringer of the damage is also at fault, and can reduce the responsibility of the infringer. "" damage is intentionally caused by the victim, the perpetrator is not liable. "individuals that the above provisions for the victims and perpetrators direct relationship between does not mean that partners can thus exempted from liability. That is a deliberate suicide under the wheels hit the defendant, the owner can not bear responsibility, but the face of suicide, partners have to bear the responsibility for inaction. the one hand, victims did not commit suicide freedom, any person may intervene in the suicidal behavior, on the other hand, no matter what causes a person faces the risk of significant harm behaviors are placed in front of an event, the respect for life and health, and partnership is obligations arising from the premise of partnership.


Caught on a dangerous adventure, aid partners have obligations? Whether it should be their own risk? Own risk is the common rules of tort law countries, the United States tort law that "the plaintiff voluntarily assumed a risk of damage caused by abnormally dangerous activity , shall not receive compensation in respect of damage. "[9] of the law does not provide exemptions own risk," <Tort Liability Act "> also avoided the problem, but in the tort law theory and practice is to recognize the tort defenses, for example, Renmin University of China Civil and Commercial Law Research Center which <"China scholars have suggested that the draft Civil Code draft>> violations compiled provisions of Article 22 that:" express consent of the victim The implementation of the harm behavior and voluntarily assume the consequences of the damage, the perpetrator does not bear civil liability. "We think that the own risk of the legislation and point of view, are directed at the victim and the relationship between direct perpetrators, such as wrestling, collision of the game and have a reasonable exercise, outdoor adventure activities such as damage, the victim can not give reasonable relative collision and no fault of people claim. the victim to participate in exploration and other activities, the activity itself has inherent risks, but only the risk it, and does not necessarily mean that the damage occurred, and as mentioned above, even if some damage deliberately caused by the victim, partner still rescue obligations, not to mention the risk of damage to just have it. At the same time, risk activities, it aims to form a partnership also to reduce the risk and hazard relief can play a role in the event that damage to a minimum, otherwise, the partners will be lost meaning of existence. so at your own risk defense is not a partner obligations.


China is in a particular historical period, honesty, altruism increasingly rare virtue help solve the crisis is more and more people abandoned, lack of social security mechanism, public safety widespread anxiety. At present, asking people for general social members of the rescue of universal obligation, indeed there are many legal and practical obstacles, the second best, at least we should not tolerate the special relationship between the partners also refused to help, recognition and adoption of judicial practice has a very important obligation to help Partnership practical significance.




Notes:
[1] [U.S.] Grenada Stewart J · Postma: <"Philosophical and Tort Law">, Chen Min, such as translation, Beijing University Press, 2005, p. 56.

[2] [English] Friedrich von Hayek: <<Law, Legislation and Freedom ">, Deng Zhenglai such as translation, China Encyclopedia Press, 2000, p. 108.

[3] L inden, 44 Can. Bar Rev. (1966) 25, 29.

[4] [United States] HL A Hart, Tonio Noel: <<law of causality>>, Zhang Shaoqian such as translation, China University of Political Science Press, 2005, the first 126--127 page.

[5] [United States] Richard A · Epstein: <<simple force of law>>, Translated by Liu Xing of China University of Political Science Press, 2004, p. 127.

[6] [United States] Michael D · Bayless: <<legal principles, "Zhang was such as translation, China Encyclopedia Press, 1996, p. 296.

[7] See M claren, Negligence, 1 Sask. L. Rev. 52 (1967).

[8] Liao Huanguo: <<tort law duty of care compared Research ">, Law Press, 2008 edition, p. 37.

[9] [U.S.] Kenneth S · Abraham, Albert C · Tate Selected: <<Restatement of Torts - Outline>>, Xi Chuan Hsu, Shih such as translation, Law Press, 2006 edition, p. 152 page. Links to Research Papers Download http://www.hi138.com