好意同乘损害赔偿责任研究
发布时间：2019-04-18 23:03
【摘要】：我国正处于工业化中后期,由于交通拥堵和汽车环境污染日益严重,好意同乘现象日渐普遍。在有的国家,顺路搭乘甚至成为一种常态的出行方式。我国驻豫全国政协委员金正新建议,设立"世界顺风车日",倡议"邻里合乘"",建立"顺风车"网站发布顺乘信息等,推动"顺风车"常态化。于社会转型期的中国,好意同乘既突显了对节能减排方面的贡献,又有助于建立、维持或增进公民之间的情谊。2017年3月15日通过的《中华人民共和国民法总则》第8条规定:"民事主体从事民事活动,应当有利于节约资源,保护生态环境。"将绿色原则作为一项基本原则,再次提醒我们,要对好意同乘损害赔偿责任加以规制,鼓励环保行为是法律应有之义。尽管在好意同乘相关问题上的讨论越来越多,然而司法实践和学界对此仍然是争议大于共识,可谓莫衷一是。好意同乘到底是纯粹的生活事实还是民事法律事实?理论上对好意同乘现象是否进行抽象性、类型化?好意同乘与无偿客运合同的关系是什么?好意人对同乘人所受损害是否仅限于"适当补偿"?对好意人所承担损害赔偿责任适当减轻的法理根据何在?这些游走在法律灰色地带的问题仍悬而未决。本文以强烈的中国问题为指向,结合2014年地方法院审理的70件关于好意同乘纠纷的经典案件,借鉴三个国家的典型制度,深层面多角度分析。在我国现有法律制度基础上,重点阐述其请求权基础、归责原则、承担方式、特殊规则,探寻对好意同乘侵权损害赔偿责任的较完备的处理方案。本文在理论创新方面,试图填补好意同乘致人损害责任在我国的法律空白;在实际应用上,期望能对我国在立法、司法等解决机制上,提供一些有益的参考性意见。研究方法上致力做到:理论命题都是建立在现实的案例基础之上,对理论命题的解说分析都是建立在对现实案例的分析基础上。
[Abstract]:China is in the middle and late stage of industrialization. Due to traffic congestion and automobile environmental pollution, the phenomenon of good-intention ride is becoming more and more common. In some countries, by-take even becomes a normal mode of travel. Kim Jong-hsin, member of the Chinese people's political Consultative Conference in Henan, suggested setting up a "world ride-by-ride day", advocating a "neighborhood ride-in", setting up a "ride-by-ride" website to publish ride-in information, and promoting the regularization of "ride-by-ride". In the transitional period of society, China's good intention to ride together not only highlights its contribution to energy conservation and emission reduction, but also helps to establish it. Article 8 of the General principles of the Civil Code of the people's Republic of China, adopted on March 15, 2017, stipulates: "Civil subjects engaged in civil activities shall be conducive to the conservation of resources and the protection of the ecological environment." Taking the green principle as a basic principle, it reminds us once again that it is necessary to regulate the liability of good intentions and multiply damages, and to encourage environmental protection behavior is the proper meaning of the law. Although there is more and more discussion on the related issues of good intention sharing, however, judicial practice and academic circles still have more controversy than consensus on this issue, it can be said that there is no agreement. Is it a pure fact of life or a fact of civil law? Is the phenomenon of good intention multiplicative abstractness and typology in theory? What is the relationship between good intention and free passenger transport contract? Is the damage suffered by a good person to a fellow occupant limited to "appropriate compensation"? What is the legal basis for the appropriate mitigation of the liability of good intentions for damages? The question of these wandering in the grey areas of the law is still pending. Based on the strong Chinese problem, combined with 70 classic cases in 2014, the paper draws lessons from the typical system of three countries, and makes a deep and multi-angle analysis of this case in the light of the 70 classic cases heard by the local courts in 2014 in the light of the typical system of the three countries. On the basis of the existing legal system of our country, this paper focuses on the basis of the right of claim, the principle of imputation, the way of undertaking, the special rules, and explores a more complete scheme for dealing with the liability of compensation for tort damage with good intention. In the aspect of theoretical innovation, this paper tries to fill the legal blank of the liability for damage caused by good intentions, and in practical application, it is expected to provide some useful reference opinions on the settlement mechanism of legislation and judicature in our country. The theoretical proposition is based on the real case, and the explanation and analysis of the theoretical proposition is based on the analysis of the real case.
【学位授予单位】：哈尔滨商业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
本文编号：2460368
[Abstract]:China is in the middle and late stage of industrialization. Due to traffic congestion and automobile environmental pollution, the phenomenon of good-intention ride is becoming more and more common. In some countries, by-take even becomes a normal mode of travel. Kim Jong-hsin, member of the Chinese people's political Consultative Conference in Henan, suggested setting up a "world ride-by-ride day", advocating a "neighborhood ride-in", setting up a "ride-by-ride" website to publish ride-in information, and promoting the regularization of "ride-by-ride". In the transitional period of society, China's good intention to ride together not only highlights its contribution to energy conservation and emission reduction, but also helps to establish it. Article 8 of the General principles of the Civil Code of the people's Republic of China, adopted on March 15, 2017, stipulates: "Civil subjects engaged in civil activities shall be conducive to the conservation of resources and the protection of the ecological environment." Taking the green principle as a basic principle, it reminds us once again that it is necessary to regulate the liability of good intentions and multiply damages, and to encourage environmental protection behavior is the proper meaning of the law. Although there is more and more discussion on the related issues of good intention sharing, however, judicial practice and academic circles still have more controversy than consensus on this issue, it can be said that there is no agreement. Is it a pure fact of life or a fact of civil law? Is the phenomenon of good intention multiplicative abstractness and typology in theory? What is the relationship between good intention and free passenger transport contract? Is the damage suffered by a good person to a fellow occupant limited to "appropriate compensation"? What is the legal basis for the appropriate mitigation of the liability of good intentions for damages? The question of these wandering in the grey areas of the law is still pending. Based on the strong Chinese problem, combined with 70 classic cases in 2014, the paper draws lessons from the typical system of three countries, and makes a deep and multi-angle analysis of this case in the light of the 70 classic cases heard by the local courts in 2014 in the light of the typical system of the three countries. On the basis of the existing legal system of our country, this paper focuses on the basis of the right of claim, the principle of imputation, the way of undertaking, the special rules, and explores a more complete scheme for dealing with the liability of compensation for tort damage with good intention. In the aspect of theoretical innovation, this paper tries to fill the legal blank of the liability for damage caused by good intentions, and in practical application, it is expected to provide some useful reference opinions on the settlement mechanism of legislation and judicature in our country. The theoretical proposition is based on the real case, and the explanation and analysis of the theoretical proposition is based on the analysis of the real case.
【学位授予单位】：哈尔滨商业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
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