情谊行为致人损害的责任分析

发布时间：2018-11-17 11:01

【摘要】：情谊行为在我国有深厚的历史文化土壤,通说认为情谊行为属于社交行为,受道德规范规制,是法律层面以外的行为,该行为本身不产生法律拘束力。然而实践中情谊行为致使相对人损害的案例比比皆是,同时情谊行为与民事法律行为的界限不易把握,我国的相关法律中又没有明确情谊行为的概念以及情谊行为致人损害的处理规则,因此法院在处理这类案件时很难找到统一的法律适用规则,往往在相关的法律原则之下自由裁量,也就造成了同类案件的处理无论是在性质认定还是在归责原则的选用上都存在了较大的差异。本文通过一组具有代表性的案例为引,指出在解决情谊行为致人损害的案件中需要解决的焦点问题:因为情谊行为导致损害后果发生后责任的认定基础是什么?情谊付出人应当如何承担责任?并且以分析、解决这两个问题为根本点展开行文。除去引言,文章分四个部分:第一部分通过一组案例引入本文研究的主题。第二部分是情谊行为致人损害的责任产生基础分析,通过对存在的几种理论学说的分析和比较,认为应以侵权说为宜,但是在适用侵权说时也应当有所限制。第三部分是情谊行为致人损害的责任承担,通过对几种责任承担方式的比较论述确定在进行责任分配时应以过错责任为主,同时根据情形结合公平原则和减轻责任规则确定行为人应承担的责任。在论述责任分配时主张对承担的范围进行严格限定,促使案件处理合法、合理。第四部分,在总结全文的基础上提出对情谊行为致人损害的责任认定的一些思考和建议。
[Abstract]:Friendship behavior has profound historical and cultural soil in our country. It is generally believed that friendship behavior belongs to social behavior and is regulated by moral norms, and it is an act outside the legal level, and the behavior itself does not produce legal binding force. However, in practice, there are many cases of relative party damage caused by friendship behavior, and at the same time, the boundary between friendship act and civil legal act is difficult to grasp. The concept of friendship and the rules for dealing with damage caused by friendship are not clearly defined in the relevant laws of our country. Therefore, it is difficult for the court to find uniform rules of application of the law when dealing with such cases. Often under the relevant legal principles discretion, also caused the same kind of cases, whether in the nature of the determination or in the selection of the principle of imputation there is a great difference. Through a group of representative cases, this paper points out the focus problem that needs to be solved in solving the case of the harm caused by the friendship act: what is the basis of the determination of the liability after the result of the damage caused by the friendship act? How should a friendship giver take responsibility? And to analyze, solve these two problems as the root point of the text. Apart from the introduction, the article is divided into four parts: the first part introduces the theme of this paper through a set of cases. The second part is the basic analysis of liability for damage caused by friendship act. Through the analysis and comparison of several theories of existence, the author thinks that the tort theory should be regarded as appropriate, but the application of tort theory should also be limited. The third part is the responsibility to bear the damage caused by friendship behavior, through the comparison of several kinds of liability assumption, it is determined that the fault liability should be the main responsibility in the distribution of responsibility. At the same time, according to the principle of fairness and mitigation of liability, the responsibility of the perpetrator should be determined. When discussing the distribution of responsibility, we should strictly limit the scope of responsibility, and urge the case to be dealt with legally and reasonably. The fourth part, on the basis of summing up the full text, puts forward some thoughts and suggestions on the identification of liability for the damage caused by friendship behavior.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913

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