Definition Of Friendship Behavior And Discussion On Its Responsibility

Law,originated from alienation of natural rights of the citizens to the public power,is a product of the country.Through the intervention of public power law make it to stabilize the society and the rights and obligations of citizens between.Law has become the main means to resolve social conflicts and disputes yet it’s not powerful enough to solve everything like custom,habit,moral,etc.Friendship behavior is a kind of behavior that beyond the reach of law,although the act itself or its content is not reflected in our current civil law,but the consequences of the damage caused by such acts is ruled by it.In China,friendship means mutual concern,love,care,help between people and it’s not necessary for each to be familiared.Friendship behavior was first proposed by Germany in the Civil Justice and also called “Favor Relations”.China’s current law does not make provision for the friendship behavior but as a moral conduct excluded from the legal regulation.But we people are involved in the society,we more or less have some friendship behavior with others as we keep emphasizing on helping each other,such as free travel, invite to a meal, take care the children of neighborhood,promise to wake up a passenger, travel together and other similar case and disputes arising therefrom more than a few.Over the years, civil law research focuses on legal acts capable of producing legal effects,studies on behavior of friendship are barely tosee and as a result research results are rarely.As we refer to books and articles of Chinese scholars,hardly can we find such words like "behavior of friendship" or "Favor relationship".The concept of friendship behavior is not very clear in the perspective of our civil law.This paper focused on the definition of behavior and the analysis of legal consequences. It began with two classical cases of friendship tort liability to draw forth the discussion of friendship behavior. On the part of the concept of friendship behavior, the author made a comparative study of German jurisprudence, common law system and the legal concept of Chinese Taiwan area. The author held that the implementation of friendship behavior bases on the bilateral friendship or good customs; it doesn’t aim at setting legal rights and obligations, and doesn’t have legal binding either. While in real life, not all the behaviors containing friendship factors are called friendship behaviors. So this paper also focused on the differences between friendship behavior, legal acts, factual acts and Samaritan behavior. Once the friendship behavior causes infringement consequences, it would enter legal vision.The author agreed with that the imputation principle of friendship tort must be“Principal of fault liability”. The premise of taking responsibility is a violation of the duty of care. Friendship tort behavior exclude the situation of the tort with intention,the actor should only bear liability of damages on the situation of gross negligence,and the liability can be reduced or cancelled as appropriate.