情谊行为致人损害侵权责任探析

An Analysis on Tort Liability of Personal Injury Caused by Gefalligkeiten

情谊行为是指人们在日常生活中为了帮助他人或者增强当事人之间的情谊而实施的意图给他人带来某种便利或者实惠的行为。其与民事法律行为和事实行为都不同。一般而言,情谊行为应由道德、习惯等规范来调整。然而,一旦因为情谊行为给他人造成人身或财产损失就会上升到侵权责任的层面,从而形成情谊行为致人损害的侵权责任。由于情谊行为致损的侵权责任与一般侵权责任不同,在责任认定时,需特别考量每一个责任构成要件所具有的特性。且一旦行为人的行为符合当事人约定的免责条件或者是存在法定的抗辩事由时,即使在符合责任构成条件的情况下,也可以减轻或免除责任。同时,在责任承担上也应类比无偿合同限制行为人的责任或者依据公平原则径直减轻或免除行为人的责任。

Gefalligkeiten, widespread in our daily life, refers to a kind of social engagements which are carried out in purpose of helping others and enhancing the friendship, is different from legal behavior and act behavior. Generally, Gefalligkeiten is regulated by such social standards as morality or customs, etc. But when friendship behavior causes some personal or property damages due to the actors own fault in the process of implementation of friendship behavior, it may fall into the tort level and as a result, contributes to liability for tort. Since the liability for tort caused by the friendship be-havior is different from general tort liability, it is necessary to take all the characteristics of the consti-tutive requirements of liability during the implementation of a certain friendship affair into considera-tion before determining its responsibility. Moreover, if a friendship behavior is fulfilled conforms with the promised responsibility exemption conditions agreed on between two parties or the actor holds stat-utory defenses, the tort liability of the perpetrator can be mitigated or even exempted, though it shall be liable for a legal responsibility. Meanwhile, when approaching the issue of responsibility bearing, it is also applicable to follow the naked agreement and limit the actors liability or directly mitigate or even exempt his responsibility on the basis of equity principles.