A Study On The Scope Of Exemption Of Liability For Voluntary Emergency Rescue Provisions

In recent years,the issue of whether we should help others when they are in jeopardy has been widely concerned.In the “Tangshan attack incident” this year,topics such as whether we should give reasonable assistance and how to do it wisely have also been discussed by the public.As early as in the “Peng Yu Case” in 2006,there were many different views on the issue of “whether to help or not” when encountering similar situations from the moral and legal perspectives.Along with the social development,as well as the development of science and technology,the social risk is increasing in various aspects.Against this background,some members of society who feel concerns for the troubles brought by helping others give up saving people who are in crisis.In order to encourage the people to help each other and revive the spirit of voluntarily helping others,The Civil Code of the People’s Republic of China formed the Article 184 of the protection of emergency rescuers from liability,based on the article in The General Provisions of the Civil Law of the People’s Republic of China.However,how to judge the scope of exemption after the provisos clause is finally deleted by the legislator and how to judge the scope of exemption for voluntary emergency relief in judicial practice are worthy of in-depth exploration.There are many theories about the exemption scope of Article 184.This paper holds that there is no legal loophole in Article 184,and its rationality should be fully studied first,and then its scope of application should be further discussed.Firstly,this paper analyses the theoretical basis of the exemption of liability for emergency rescue behavior,namely,it conforms to the justice of correction,conforms to the principle of law and economics,and reflects the principle of interest balance.From the perspective of literal meaning,a complete exemption seems to give too much freedom to the rescuer,but through perfect interpretation,it can guarantee its application in judicial practice and realize the real legislative purpose.Taking the duty of care into account,in the judicial practice of China the court also reduces the scope of application of the Article 184,that is,it is not applicable for deliberate or gross negligence.On the premise that the scope of exemption of liability is limited to general negligence,the identification of emergency rescue behavior has a tendency to expand,and Gef?lligkeit(help others in order to enhance relationship or based ongood customs)or emergency rescue between co-actors can be identified as emergency rescue behavior that meets the conditions of exemption of liability.And through the study of the experience of comparative law,the common trend of comparative law is a limited application of no liability.The exemption of liability for voluntary emergency rescue behavior cannot be regarded as absolute exemption,since the damage caused by the subjective intent or gross negligence should not be included in the scope of it.Only in this way,the interests of the recipients of help can be protected as the prerequisite to realize the social and public interests,by guaranteeing the safety and interests of both the rescuer and the recipient.This paper argues that voluntary emergency rescue act shall belong to the special negotiorum gestio according to its personal nature.The application of the Article 184 shall exclude the exemption of liability of subjective situation.Competitive merging with negotiorum gestio formation exist gross negligence claims the applicable negotiorum gestio system,in the heart of the practice range limited to general statute.At the same time,on the basis of general exemption of liability for normal negligence,in order to better realize its legislative purpose,we can refine the duty of care of the rescuer,the limit of the emergency rescue behavior and the distribution of the burden of proof in the emergency rescue behavior in the judicial interpretation.