| Xiao zhijun case, namely "the husband refused to sign operation case of maternaldeath", led directly to the newly revised "law of tort liability" fifty-sixth come on stage:"for rescuing the dying patients and other emergency situations, cannot obtain the patientor his close relative opinions of the medical institution, the responsible person orauthorized by the approval of the responsible person, it can be immediately implementedthe corres-ponding medical measures."The article sparked widespread discussion,academia has two kinds of different point of Views: one is to support the theory, think it isto protect the vulnerable groups of major initiatives, is a fair idea of embodiment; or as"the socialization of private law" an important characterization, think its marks the moderncivil law to contemporary the benign transformation of civil law. One is the abolishment of,that it increases the hospital to rescue obligations, causing the rights and obligations ofboth parties is not equal.Through the analysis of legal paternalism, clarify the rights and obligations, theprovisions of the impact of. It is found that the distribution of rights and obligations, isessentially negated the individual to make take risk oneself promise, is based on the "love"and "white" and the limiting behavior of autonomous product. From a deeper level,negative resistance but illegal promise, is the shift of responsibility. Individual choice andresponsibility of phase separation, lack of optimal action incentive, destroying both thereasonable expectation, reduce social welfare output, so that the law out of guidance. Onthe other hand, the "tort liability law" on rights relief and generally free of imbalancebetween, in the law of torts paternalism color increasingly heavy, as prior to the individual"strong","weak" to distinguish, according to "restrain the powerful and help the weak"undertake responsibility allocation. Responsibility for the foundation is no longer thebehavior of human moral condemnation, but which one party with information, resources,capability advantages, is paternalism in the vision of "strong"; responsibility is not toblame behavior sanctions, to fault induced damage correction type fill, but unfortunately damage distribution or transfer, aimed at the realization of distribution justice. This kind ofright tilt configuration often focus on local damage to fill, but it is easy to hurt the wholejustice, and paternalism to protect object is possible because the overall damage to protectprofits of justice.private legal paternalism not uniformly undesirable; conversely, in the individualindependent choice to bring social cost, or between the parties or too great disparity, musthave the aid of right inclined arrangement method can give timely relief situation, legalpaternalism goodwill interventions have play--but its premise is still not subvert the lawor private law system logic, will become social legislation. |
