Research on the explanation of salvor's damage relief
——Comment on the first paragraph of article 979 of civil code (Draft)
Author brief introduction
Feng degan, PhD, civil and commercial law, Nanjing University
Contents
1、 Questions raised
2、 Evaluation of interpretation of relevant articles
3、 The legitimacy of salvor's damage relief
4、 On the construction of the explanation theory of salvor's damage relief
Abstract
There is a certain contradiction between the "appropriate compensation" for the damage suffered by the salvor and the "necessary expenses" for the damage suffered by the manager in the no cause management system. The existing explanation, whether it is the "legal compensation responsibility" or the "unified appropriate compensation responsibility", cannot successfully resolve the conflict. From the perspective of constitutive requirements, a reasonable act of bravery for a just cause also constitutes the management without cause. If the salvor suffers damage, it should be given relief from the perspective of legal value, but the scope of relief still needs to be limited. As far as the method of limitation is concerned, the more appropriate way is to distinguish the internal and external control, and work together to complete the limitation of damage. The internal control is the inherent risk type differentiated protection method under the equivalent causality, while the external control is the damage discretionary system under the principle of good faith. In order to maintain the independence of the article, the "appropriate compensation" in the article should be interpreted as the fair compensation for those losses that should not be remedied. There are some deviations in the provisions of the civil code (Draft), so the future legislation and interpretation need to be reviewed.
Key word
Fair liability of compensation for damages caused by non cause management
1、 Questions raised
In the period of transformation, China is in the stage of value reflection and reconstruction. In practice, the frequent phenomenon of "Heroes bleed and cry" has aroused intense discussion among Chinese people. In this case, public opinion has been calling for a system of righteous acts with Chinese characteristics. From Article 109 of the general principles of civil law, Article 23 of the tort liability law to Article 183 of the general principles of civil law, China's legislation does not directly include the courage to do justice into the non cause management system for regulation, but adopts a binary legislative model. It is undeniable that from Article 93 of the general principles of civil law to Article 121 of the general principles of civil law, China's legislation still affirms the core position of the management system without cause in the system. In view of the abstract and principled nature of China's unique "brave act clause", even though it is formally recognized that the act of brave act is independent of the system of non cause management, it seems that the system radiation effect of non cause management on the effect of the act of brave act should not be ignored in the theory of interpretation.
Article 121 of the general principles of the civil law stipulates that the administrator in the non cause management has the right to request himself to repay the necessary expenses incurred therefrom, and Article 183 stipulates that the beneficiary in the courageous act of righteousness shall give appropriate compensation to the salvor who has suffered the damage. Based on the advocacy of value, it seems that the "appropriate compensation" to the salvor should not be lower than the "necessary expenses" that the manager can claim. However, in the sense of the text, "appropriate compensation" does not want to remedy all damages, but only the compensation liability under comprehensive consideration, so its relationship with "necessary expenses" is worth reviewing. It is undeniable that there is a inextricable relationship between the act of bravery for a just cause and the management without cause. How to reasonably explain the right of "appropriate compensation" in Article 183 of the general principles of civil law under the radiation effect of the management without cause should be the subject of the current interpretation theory. For this reason, the main task of this paper is to reflect on the legitimacy of the right to claim compensation for the damage of the rescuer in the act of righteous courage under the premise of sorting out the existing interpretative arguments, and take this opportunity to find an interpretative way out for the relief of the damage of the rescuer in the act of righteous courage in China, combined with the non cause management system.
2、 Evaluation of interpretation of relevant articles
（1） Contradiction under the interpretation of meaning
Since the era of the general principles of civil law, China has established a legislative system to distinguish between the management without cause and the bravery for good. Article 93 of the general principles of civil law stipulates that the manager without cause has the right to ask himself to pay the necessary expenses, and Article 109 stipulates that the rescuer with courage for good can ask the beneficiary to give appropriate compensation. Article 132 of the opinions of the people's communication clarifies the scope of necessary expenses, and considers that the expenses directly paid in management or service activities and the actual losses incurred in such activities should be included. Generally speaking, the actual losses include the damages suffered by the manager in management activities. Therefore, if the manager suffers damage in the management without cause, as long as the damage has a quite causal relationship with the management behavior, then I should give compensation in principle. In view of the right of appropriate compensation of the salvor in the brave act, Article 142 of the opinion of the people's communication further explains Article 109 of the general principles of civil law, and emphasizes that the relief of the salvor's damage should be determined according to "the amount of the beneficiary's benefit and its economic situation". At the same time, Article 15 of the judicial interpretation of compensation for personal injury is further clarified on this basis, which holds that the salvor can request the beneficiary to make appropriate compensation within the scope of benefit, thus limiting the scope of appropriate compensation to the beneficiary. However, it should be noted that the tort liability law implemented in 2010 is not subject to the limitation of judicial interpretation. Article 23 of this law does not emphasize the limitation of "within the scope of benefit", but only considers that "appropriate compensation" should be given to the salvor. Therefore, whether the scope of appropriate compensation is limited remains controversial. In this regard, although there are still some differences in the details, we can see that no matter in the era of the general principles of civil law or the era of the tort liability law, in the level of legislation, China has always distinguished between the management system without cause and the act of courage for good. When the manager or the rescuer suffers damage, the manager can claim that all of them have considerable The salvor can only claim appropriate compensation for the damage suffered.
The general principles of civil law has not changed the above legislative style. As far as the provisions of the causeless management are concerned, Article 121 of the general principles of civil law follows Article 93 of the general principles of civil law, and there is no essential change except for a slight adjustment in the meaning. As for the provisions on brave acts, Article 183 of the general principles of civil law also follows the provisions of Article 109 of the general principles of civil law and Article 23 of the tort liability law, and only enriches the types of cases. Article 183 of the general principles of civil law can be divided into three types according to whether there is a third party who infringes or not and whether the third party who infringes has the ability to make compensation. They are the third party who infringes and can make compensation, the third party who infringes but can't make compensation and the third party who does not infringe. According to the different types mentioned above, the general principles of civil law holds that if there is an infringing third party who can make compensation, the beneficiary "can make appropriate compensation"; if there is no infringing third party or the third party can not make full compensation, the beneficiary "should make appropriate compensation". According to the traditional theory, if there is a causal relationship between the damage and the management behavior, in principle, I need to compensate for all the damages suffered by the manager, and this kind of compensation is not affected by the scope of my profit. However, traditional theory holds that when a rescuer suffers damage, the aided person only needs to make appropriate compensation for the damage. Generally speaking, the nature of compensation liability is either based on the compensation liability of fair liability or independent legal compensation liability. Although it is generally believed that the scope of the salvor's compensation is not limited by the scope of the beneficiary's profit, it is generally believed that the Beneficiary only gives the salvor appropriate compensation. In terms of the operation of judicial practice, for the appropriate compensation for the damage of the rescuer, the judge will generally make a half judgment on the total damage, or make compensation according to a certain percentage, which is difficult to reach the height of compensation in the management without cause.
Based on the above explanation, if the manager in the non cause management is damaged in the management process, the manager can claim all compensation from him, which is not affected by his profit scope. At the same time, the mainstream theory generally also claims that the act of courage for good belongs to the management without cause, and it should belong to the management without cause under the state of emergency. In addition, from the perspective of legal cultural belief, in the choice of legal value, China has always advocated social mutual assistance behavior, and encouraged civil subjects to actively implement the act of bravery to save others within their capabilities. However, from the general principles of civil law, tort liability law to the general principles of civil law, it is considered that the right to claim compensation for the damage of the salvor in the act of bravery should be appropriate compensation, which reduces the degree of protection compared with the right to claim compensation for the damage of the manager without cause management. Because the behavior of brave acts can be evaluated as the management without cause from the perspective of constituent elements, and the general theory of our country still thinks that the behavior of brave acts belongs to the management without cause. In view of the protection of the system of management without cause to the rescuer is stronger than the "appropriate compensation" in the clause of brave acts, so in the judicial practice, many rescuers in order to better protect their rights and interests, constantly help Management clause without cause.
From this point of view, it is for the sake of better protection of the provisions of the righteous acts of the salvors, but it is not conducive to the protection of the salvors. No wonder some scholars think that "on the contrary, the perpetrators of the righteous acts will not be fully compensated, resulting in an embarrassing result that deviates from the substantive justice". From this point of view, if we still adhere to the legislative style of distinguishing between non cause management and courage to do justice, we will fall into a dilemma. If we still adhere to the application of appropriate compensation in the act of courage to do justice, we will reduce the protection of the rescuers. If in order to protect the rescuers in the act of courage to do justice, we will continue to escape from the general non cause management clause, then the article of courage to do justice It's going to be written. How to reconcile the dilemma has always been a hot topic in academic research and debate.
（2） Two interpretation schemes under systematic consideration
As mentioned above, if we insist on the regulation path of the two-way system of the causeless management system and the brave act clause, only use Article 183 of the general principles of civil law to adjust the brave act, it will reduce the protection of the rescuers in the brave act. According to the meaning of the above provisions, from the perspective of judicial practice, even if there is a quite causal relationship between the damage suffered by the rescuer and the rescue behavior, the rescuer can only get appropriate compensation, often can not get all compensation, which is equivalent to destroying the enthusiasm of the civil subject. In order to resolve the system contradictions brought by the above-mentioned literal interpretation, and avoid the conflict between the act of courage without cause which also belongs to the system of management without cause and the general regulation of management without cause in the evaluation of the effect of law, Chinese scholars, on the basis of the comparative law and the local legal tradition, study the right of claim for damages of the rescuers in the act of courage without cause. From this, two relatively representative interpretation theories are derived: one is the theory of statutory compensation responsibility; the other is the theory of uniform and appropriate compensation responsibility.
According to the theory of legal compensation responsibility, the right of "appropriate compensation" for the damage of the salvor is independent of