Comment On The First Case Of AA Self-Tour’s Claiming Compensation

AA self-tour is based on the common interests of every participates for a purpose of making friends and relaxing oneself. This circumstance fits the essential characteristics of "Gefalligkeitsverhaltnis" for lacking "geschaftswille" and the attributes of "rechtsgeschaft". Ordinarily, it’s impossible to develop a special legal relationship among participants. Nevertheless, participants still should assume tort liabilities on the basis of fault while violating certain duty of care and infringing upon others’legitimate rights and interests. With the development of theory of objective fault, the weigh of liability in the tort of fault is equal to considering whether the defendant violated the duty of care or not. In this case, the duty of care refers to the safeguard duty specially. In view of nonexistent special legal relationship among ordinary participants, commanding them to mutually burden the safeguard duty violates the principle of fairness obviously. But for the organizers called the openers of a danger, they should assume safeguard duties. However, the defendants didn’t conform to the essential characteristics of organizers in this case, it is reasonable for them not to assume tort liability. Therefore, whether the judge can apply to fair liability in this case or not, to a certain extent, becomes the last safeguard for the plaintiff. Nevertheless, owing to the existence of fault of the victim and the inexistence of causal relationship between the defendants’behaviors and the damages, the judgment given by the appeals court in the case is untenable. This thinking reflected arbitrariness of applying to fair liability and destroyed the judicial authority ultimately.