论“驴友”遇险事件的民事责任

On the civil responsibility of Hikers for accidents

自助户外运动是一种社会活动,其组织者则是法律意义上"从事社会活动的人"。在"AA制"的"驴行"活动中,不能为"驴头"设定较重的安全保障义务,而在"非AA制"的"驴行","驴头"的安全保障义务则相对较重。基于"驴友"参与"驴行"具有自甘冒险的成分,故"驴头"的侵权责任可以减轻。"驴友"承担侵权责任的法律依据是侵权法的一般条款,而不宜援引所谓的公平原则。因为缺乏"效果意思",不宜认定"驴头"和"驴友"之间成立合同关系,亦不能判令"驴头"承担违约责任。根据合同的解释方法,保险公司不能主张"驴行"活动为"探险",保险责任亦不能因为这个理由而免除。

Self-service outdoor activity is a social activity, the organizer of which is ＂a person who takes part in social activities＂ in the legal sense. In the activities of Hike by going Dutch, heavy obligations to ensure the safety of Hikers should not be created for the Organizer of Hikers, while, in the Hike not by going Dutch, the obligation of Organizer of Hikers to ensure the safety is relatively heavier. Based on that Hikers take part in Hike voluntarily with the composition of adventure, the tort liability of the Organizer of Hikers is reduced. The legal basis of the tort liability taken by Hikers is common provisions, not the principle of equity. Because of lack of ＂the meaning of effect＂, it is not appropriate to consider that there is a contractual relationship between the Organizer of Hiders and Hikers, nor to decide the Organizer of Hikers to bear the liability for breach of contract. In accordance with the method of explaining contracts, insurance companies can not claim that the activity of Hike is an adventure. So the insurance liability can not be released because of such reason.