| Thinking for the practice case of“Xiao Yue-yueâ€,I found that "touching porcelain" oftenappear in practice, many people don’t save the danger one. These phenomenon lets me reflectdeeply. Based on the Tort Liability Act as a starting point, I want to analyze our countrypresent legal system applied in practice, and find the problems in the practice, and then learnexcellent experience from foreign legal, to solve the problem of our legislation and practice ofthe good Samaritan problem.At the end of the paper,I will give some suggestions.In this paper, the first chapter is introduction. I briefly describe the significance of thebackground. I study the necessity and urgency of protect the Good Samaritan. The startingpoint of this paper is the tort liability act. In order to protect the good Samaritan, I analyze ourcountry’s legal system and see how to apply. So that I can found the problem. Then I learnedthe good foreign legislation and best practice. For protecting the good Samaritan, there are alot of problems in legislation and practice in our country. Finally, I put forward manysuggestions.The first chapter of the paper is the introduction. In this chapter I illustrates the researchbackground and research significance. I explained it is necessary and urgent to protect theGood Samaritan. Because of the Good Samaritan is happened between citizens of therepersonal rights and property rights. This is a civil law content. So it is correct to be protectedby the tort liability law. Article23, of The tort liability law, regulated:the responsibility of theinfringer, the beneficiary and good samaritans. Then I illustrates the research situation of ourcountry and foreign. I list the conditions of protection the good Samaritan law in our country.I explained the lack of domestic research and my innovation.Finally, I illustrate research ideasand research methodsIn the second chapter, I analyze the general theory of the good Samaritan. General theoryincluding the concept of administrative law and civil law concept of the good Samaritan.Theyare both very nice. And then I explained the dispute of the nature of the good Samaritan.Someone say that good Samaritan’s nature is administrative assistance. Because of the goodSamaritan is helping the countries to perform its obligations. Some people think that goodSamaritan is justifiable defense or emergency actions. Most people think that good Samaritanis special negotiorum gestio. I think the first idea is easy to protect and reward the goodSamaritan. But, I think it cannot explain the relationship between the conductors. The secondpoint is beneficial to waive or reduce the responsibility of the good Samaritan. But, I think itcan not explain the nature of the good Samaritan. The third view is helpful to make up for theloss of the good Samaritan. Each view has advantages and disadvantages. I finally illustratesthe components of the good Samaritan. I explained the good Samaritan has no law obligationnor the obligations stipulated in the contract,and is not the duty behavior. He is a completecivil capacity. The Imputation principle contains the fault liability between the infringer andthe beneficiary, the fault liability between the infringer and the good samaritan,and the fairliability between the beneficiary and the good samaritans. Tortious conduct including theinfringer to the beneficiary and good Samaritan, and between the beneficiary and the goodsamaritan. In the third chapter, I analysis used the tort liability act to protect good samaritans. First,I analysis the problems of protecting good Samaritan. The courts and the government both canmaintain good Samaritan. But the government has no right to determine the good Samaritan.The court sometimes decide with the tort liability law article23th, sometimes with "generalprinciples of the civil law" the93th, sometimes with the explanation on compensation forpersonal injury. So you can’t uniform standard. Then I discuss the problem of the tort liabilityact to protect good samaritans. The first problem is national is also the beneficiary, but the lawhas not stipulated. The second problem is that the compensation scope is not clear, I’m notsure whether within the scope of compensation or within the scope of damage compensationor share with fair. The third problem is the burden of proof between the beneficiary and goodSamaritan is unknown.In the fourth chapter, I draw lessons from the foreign law to protect good samaritans. Inthe discussion, I according to the classification of continental law system andAnglo-American law system. I suggest that we can learn the extent of indemnity from thecontinental law system. I also recommend that we can learn the state compensation from theAnglo-American law system.In chapter five, according to China’s practice, the problem of protecting good samaritans,and foreign good law, I put forward two suggestions. The first is take up a "tort liability law"judicial interpretation. It should be clear compensation including mental loss and material loss.It should also clear the beneficiary has the responsibility to prove the infringement. Second, Isuggest that the court and government should cooperate. |
