Study On Restricting The Exemption Of The Person Who Took The Emergency Action

As one of the ways of private remedy,necessity has an important guarantee for private rights.From the perspective of the system itself,emergency risk avoidance involves many stakeholders,which has certain complexity and comprehensiveness.However,there are big deficiencies.In theory,the basic theory research on necessity is insufficient,the system positioning of emergency avoidance exemption is confused,lack of responsibility and risk burden,and lack of research perspective protected by the interests of victims.From the legislative point of view,there is a certain conflict between the legal provisions.Secondly,there are major defects in the classification of the risk as the meta-classification,which makes the interpretation difficult.In addition,the provisions on the legal consequences of necessity are relatively rough.Therefore,in order to solve the above problems,this paper firstly fully demonstrates the exemption of necessity personnel in advance,and provides a basis for exemption restrictions.Secondly,the justification of the restriction of exemption is demonstrated,that is,why the exemption of the hedging person should be restricted.Finally,the restrictions on the excuses of excuses are discussed,and some suggestions for the formulation of necessity norms are put forward.This article is divided into three chapters:The first chapter analyzes the exemption premise of necessity persons from three angles.First of all,from the theoretical point of view,it demonstrates the academic basis of the emergency asylum exemption as a general premise.Utilitarianism and social joint obligations demonstrate the rationality of emergency avoidance of excuses from different angles.After comparative analysis,this paper uses utilitarian interpretation path,because it can reveal the institutional value of necessity more deeply,which can be better.The private law attribute of the civil law can also provide the main analytical tools for the balance of interests in necessity.Secondly,from the perspective of system positioning,it is considered that necessity is an illegal obstruction,supporting the independence of the illegal elements of tort liability.The exemption of necessity is to prevent the illegal result,not the responsibility.Finally,through the analysis of China's empirical law,it reveals the similarities and differences and contradictions of necessity between different norms,and provides the premise for the standard design of the third chapter.The second chapter demonstrates the justification of the emergency avoidance restrictions.First,from the perspective of the protection of the interests of victims,the author analyzes the important position of the victim in the emergency risk avoidance system,and realizes the protection of the victim through the restriction of the exemption of the hedging person.Secondly,from the perspective of the balance of interests of the parties,through the introduction of the interest measurement method of interest law,the interests of the necessity parties are compared comprehensively,and the factors affecting the exemption of necessity personnel are clarified,and the system for necessity is provided.basis.The third is to distinguish between two important concepts of avoidance and exemption.The first is the distinction between responsibility and risk burden,providing space for the broad-based restrictions of emergency asylum exemptions and increasing the protection of victims' interests.Secondly,the balance between overall interests and individual protection,changing the normative configuration of the safe haven as an absolute center,increasing the evaluation dimension of the victim,and complying with the development trend of the responsibility law to the relief law.The third chapter is the construction of regulations for necessity restrictions.The first pair compares and analyzes the three classification methods of necessity,and believes that the risk-avoiding object should be used as the meta-classification standard.Based on the comparative analysis of multiple versions of necessity provisions,it is considered that China's emergency risk avoidance system should be stipulated in three aspects: legitimacy,avoidance and restriction of the risk-avoiding person,and protection of the interests of the victim..Second,the broad-based and narrow-separation of the excuses of excuses is restricted.The narrow restrictions refer to the liability of the hedging person to avoid risks,and the broad limitation is the burden of compensation obligations.Third,in the narrow limits,the focus is mainly on the identification and legal consequences of risk aversion.In the determination of risk aversion,this paper believes that when the object of risk aversion is property,the lack of risk aversion does not constitute a safe haven.Whether the hedging is appropriate or not should be objectively stated,that is,the principle of proportionality should be strictly adopted for judgment.The general personal rights and interests can be the object of hedging,but the major personal interests cannot be in principle unless the specific circumstances are met.In the legal consequences of risk aversion,it is necessary to combine the behavioral ability and subjective knowledge of the risk-averse person.Vigorously develop liability insurance and other relief systems to spread the risk of necessity,but this does not replace the reasonable determination of responsibility in necessity.Fourth,in the broad sense,this paper considers that the emergency claimant's loss compensation obligation is a new type of independent debt,not based on fair liability.For emergency avoidance of their own interests,the victim's losses should be fully compensated,not “appropriate”.In the necessity for the benefit of others,the hedger does not have to bear any compensation obligations,which is also in line with the judicial practice.