On The Legal Application Of The Rules Of Emergency Rescue Act

The rules on emergency relief acts suffer from the legal problems of an indeterminate legal nature,unclear conditions of application and controversial absolute immunity.The act of emergency relief has the same basic properties as uncaused administration,such as the absence of obligation,altruism and the deterrence of lawlessness.However,compared to general causeless management,it has special characteristics in terms of the occurrence of the situation and the range of subjects involved,so it should belong to a special kind of causeless management.The conditions for the application of the rules of emergency relief are unclear in terms of the qualification of the relevant subject,the content of the object,the subjective content,the criteria for judging the emergency and the content of the causal relationship.Combined with the analysis of the constituent elements of causeless management,and taking the background of the establishment of the rules and the purpose of the rules as the basis for argument,the rescuer and the recipient in the emergency relief act rules should be natural persons,excluding legal persons and other organisations;the object content should be personal interests;the rescuer should have altruistic purposes and the intention of rescuing others subjectively;the judgment of emergency should adopt subjective standards;the "cause" in the causal relationship should be the satisfaction of the rules.The "cause" shall be the act of rescue that satisfies the other elements of the rule,and the "effect" shall be the additional damage caused to the recipient by the act of rescue.In cases where the rescuer causes damage to the recipient’s legal interests,the exemption from liability under the emergency relief act rule should distinguish between degrees of fault.Although absolute exemption from liability is more conducive to encouraging rescue,it violates the principle of equality in civil law and the jurisprudence of causeless management,causing a conflict between the civil law system and the civil and criminal order.The absolute exemption from liability is also not in line with comparative law experience,taking into account overseas legislation on emergency relief.The reasons for the relative exemption of the rescuer are as follows.Firstly,from the legislative history of the rule,the legislator was concerned that the addition of the proviso of no exemption for gross negligence would be detrimental to the encouragement of rescues and would have a negative social impact,therefore,based on the consideration of legislative technology and the enhancement of the incentive to rescue,the exemption for gross negligence of the rescuer was left to judicial decisions and doctrinal discussions,thus forming an obvious legal loophole.Secondly,from the perspective of the legislative purpose of the rules,the protection of the rights and interests of the rescuer is only the main purpose of the legislation,not the only purpose,based on the attribute of causeless management of the emergency rescue act,the rescue act is to serve the recipient,the legislator cannot ignore the protection of the rights and interests of the recipient.At the same time,the absolute exemption from liability is also contrary to the overall legislative purpose of the Civil Code.Thirdly,the relative exemption from liability is justified and can circumvent the theoretical shortcomings of the absolute exemption from liability.Fourthly,in order to achieve the purpose of the legislation,the element of fault should be present in the emergency relief rules and be interpreted in a purposive manner,limiting the exemption from liability to the general negligence of the rescuer,thus excluding the application of the rules to the exemption from liability for gross negligence caused by the rescuer.In addition,in the event that the rescuer abandons the rescue,a distinction should be made between the act of rescue and the abandonment of the rescue,with the former being exempt from liability.Where the rescuer causes damage to a third party,the rescuer may invoke the provisions on self-defence or emergency hedge.If this is not possible,and if the rescuer is not grossly negligent in causing the damage and the other elements of emergency relief are met,the damages incurred by the rescuer against the third party may be considered as necessary expenses paid by the recipient as a result of the rescue,and the rescuer may,after compensating the third party The rescuer may recover the damages from the recipient in accordance with Article 979 of the Civil Code.