Study Of Emergency Relief Exemption Clauses

Article 184 of the Civil Code stipulates: " If the recipient suffers any voluntary damage,the rescuer shall not bear civil liability." The article establishes the absolute exemption rule for rescuers,and the complete exemption rule will help exempt rescuers from their worries and encourage rescue efforts.But there are also some problems with the clause,and the scope of the exemption is a controversial point.Whether it should be completely exempted from liability is a question that many scholars are thinking about,which is also the focus of this thesis.The nature of the act needs to be defined before the exemption scope of emergency relief is discussed.From the perspective of the appearance of the occurrence of the identity of the rescuer and the emergency defender and the manager in the management may overlap,so their nature is easy to be confused.However,from their function positioning in the provisions of the Civil Code,it can be found that these different legal disputes are different.Therefore,only grasp the behavior subject to who bear the responsibility of this point,can be distinguished.To define the nature of emergency assistance and unexplained management,we need to focus on the urgency of the situation and the content protected by the behavior.The person of the recipient is in a state of emergency danger is a necessary element of emergency assistance,and the property of the recipient should not be included.The free management mainly solves the disputes arising from the manager’s management of his affairs in daily life,and does not require the emergency situation,and the content of the management is mainly property affairs.Therefore,the emergency rescue should not be included in it,and the emergency rescue should belong to the independent exemption reason.On the premise of clearly defining the nature of emergency rescue behavior,the constitutive elements of the exemption of rescuer liability are analyzed.Among them,the definition of the state of emergency is considered in combination with the subjective standard of the actor and the general cognition of the general public under the same circumstances,mainly with the subjective standard of the rescuer,supplemented by the judgment of the ordinary people.If the rescuer’s judgment of the state of emergency obviously deviates from the general cognition of the general public,the standard of the general public shall prevail.In addition,the "considerable causal relationship theory" is adopted to define the causal relationship between rescue behavior and damage results.After clarifying the nature and constitutive requirements of emergency rescue,the problems existing in the scope of rescuer liability exemption are sorted out from three levels.First,from the perspective of the judicial application of the clause,the clause is too single,the lack of the corresponding legal interpretation to assist the understanding,resulting in difficulties in the application,the discretion of the judicial person is too large.In addition,the results of the judgment on the scope of exemption is different,some judgments support the full exemption of the responsibility of rescuers,and others claim the limited exemption of liability,resulting in confusion on the judgment.Second,from the perspective of civil law hermeneutics,the provision of absolute exemption is partly contrary to the legal spirit of sociological interpretation,comparative law interpretation and system interpretation.First,it conflicts with the logic of the sociological interpretation.This clause completely exempts the rescuer from the responsibility,and without any requirement on the duty of care of the rescuer,the effect of the rescue is likely to be greatly reduced,or even counterproductive,and it is difficult to achieve the legislative purpose of this clause.Secondly,we should compare it with the legal principles in the law Test phase contrary.Although the legislation of British and mainland law countries in this respect,they all reflect the position of limited immunity.Article 184 of the Civil Code of China opens the precedent of absolute exemption of liability of rescuers.Finally,the provision of absolute exemption does not meet the requirements of the system interpretation.The justifiable defense and emergency avoidance in the civil law exemption system hold the limited exemption of the liability of the actor.The absolute exemption will lead to the conflict with the exemption rule system in the civil law.Third,from the perspective of the principle of fairness,the provision of absolute exemption unequal the protection of the rights and interests of rescuers and recipients,which violates the principle of fairness.In order to solve the above problems,the relevant concepts of the components of emergency relief exemption should be made clear first.Unify in application,narrow the discretion in the process of judicial application,and make accurate application of the clause.When the emergency rescue act meets the constitutive requirements of other exemption reasons at the same time,the law shall be applied according to the subject and object of the liability.Secondly,the scope of exemption should be amended.Using legislative interpretation,combined with the subjective "gross negligence" and objective "major damage" to limit the scope of exemption.Finally,in the judicial trial,the rule of burden of proof under the principle of fault is strictly applied,and the evidence of both sides is examined to achieve fairness and justice to both sides.