Study On The Liability Exemption Standard To Respondents Caused By Emergency Rescue In China

The liability exemption standard of emergency rescue with Chinese characteristic has been set in Article 184 of the General Provisions of the Civil Law-the salvor shall not bear civil liability for damages caused to the respondents during emergency rescue.The standard comes into being under a profound social background.It is a legislative appeal resulting from a series of cases in relation to“Seeing someone in mortal danger without saving him”,such as Pengyu case and Little Yueyue case;it is also a countermeasure taken by judicial organizations and legislative organizations when public opinion continues to unfold.We should fill in the legislative gaps,safeguard legitimate rights and interests of the salvor,facilitate the building of a moderately prosperous society in all respects,and respond to the call of the times.All these efforts are inherent in the liability exemption standard of emergency rescue,have worked in parallel with the legislative policy of promoting core socialist values,and lie great significance of times.However,people from all walks of life hold different attitude toward the so called standard of “ completely responsibility free ”.The public overwhelmingly support it,while the scholars and judicial organizations adopt a relatively rational attitude.In judicial practice,judgement idea on such cases diverges a lot;understanding of such cases also fail to reach a consensus between experts and scholars.As such,it’s evident to see the internal problems of this norm.The initial goal of the liability exemption include: to create a sound social environment where “Someone in mortal danger are saved ”,to fully ensure the interests of the salvors,and to defuse the moral crisis.In order to achieve this goal,the legislators ultimately establish the liability exemption standard based on the completely responsibility free pattern,namely,the salvor shall not shoulder the responsibility.Essentially,the emergency rescue belongs to voluntary deed,while the“ completely responsibility free ” pattern violates the basic legal principle of management on the non-impediment of illegality;when moral norms are transformed into legal norms by breaking their boundary,the element of law covers too much in the result;the balance between rights and obligations is broken,resulting in the separation of the two,which is inconsistent with the principle of fairness.Therefore,it’s too wide-ranging and scarce of rightness regarding the scope of liability exemption in emergency rescue.With the completion of its legislation,the judicial authorities should clarify the connotation of this provision based on the hermeneutics of civil law so as to apply it to specific cases.Thereinto,the conclusion drawn from the explanation in view of its context and the history is consistent with the standard,namely,the salvor should be completely exempted from liability for damages caused by himself,without considering his subjective fault and the necessity of causing damages.Whereas,the conclusion drawn from the explanation based on system is contrary with the standard.In detail,the salvor should not be completely exempted from liability,unless his situation meets the constitutive requirements of emergency rescue,with no subjective and gross negligence and the damage being within the specific limit.However,as the rights distribution structure,differentiated by the legislation and judicature,decides that when there is no flaw in law,the judiciary can only interpret the law within the legislative framework,and cannot violate the essential meaning of the legislation.Therefore,the explanation based on system cannot be used to impair the absolute immunity right granted to salvor by the standard of emergency rescue.This indicates that it is impossible to break through the legislative dilemma by applying the interpretative theory to make up for the less-legitimacy of this standard.In this way,the legislative path is the only way to fix the legislation defects.With reference to foreign emergency rescue systems,the limited liability exemption mode is adopted,which allows the salvor to be exempted from liability providing it belongs general negligence.If the salvor causes damage to the respondents due to gross negligence,he still shall bear civil liability.On system design,the common law system tends to apply separate legislation,while the continental law system mainly integrates emergency rescue into the civil code.This difference enlightens us with the way and content of the legislation.Meanwhile,currently,specific provisions of our civil code is under compiling.Therefore,the adoptable legislation mode can be: to draw into tort liability and issue legislative interpretation.Accordingly,in terms of legislative content,it is necessary to get to the root of the problem,correct the legislative bias as for“timeliness”of saving people,take“effectiveness”into consideration,and set the dual purpose guidance of“timeliness plus effectiveness”.Then,on the other hand,the degree of negligence can be taken into account.The general negligence,rather than gross one,shall included into the scope of liability exemption.Meanwhile,the principle of proportion can be borrowed,setting with necessity of damage degree,thus to establish a scientific and reasonable liability exemption standard for emergency rescue.