志愿活动中致损风险研究

发布时间：2018-12-13 08:51

【摘要】：随着我国经济的快速发展,以及全球化的大趋势,公共事务的产生越发频繁,种类也越发多样化,同时社会两极分化日益严重,弱势群体大量存在,在此时代的潮流下,仅靠国家和社会的力量已不能满足需求,社会呼唤志愿者。乘此东风,志愿活动在全国范围内甚至全世界范围内的广泛开展。志愿者的存在为我们的社会带来了诸多的积极影响。然而在志愿活动为社会服务的同时,其中的参与方却面临着可能使得他们遭受损失的风险。具体来说分为志愿者致害导致第三方受损的风险和志愿者自身受损的风险,当这两种风险发生时,都面临着如何判定责任以及如何弥补受损害者利益的问题。然而,基于志愿服务不涉及经济利益的内在属性,实践中对志愿者权益的关注与保障相当缺失。同时,也由于志愿活动的公益性,志愿者致害时赔偿责任分担也成为了一个棘手的问题。而在志愿活动中,风险是无法回避的。例如,在抗震救灾的志愿活动中,志愿者受损的风险是较大的,当志愿者受损时,责任由谁去承担——政府、保险公司、志愿服务组织、还是其他,而在如今的法律规定中是不能回答这个问题的。另一方面,志愿者的素质参差不齐、动机也不尽相同,不能排除有人怀着不甚美好的动机参与到志愿活动中,也不能排除志愿者不慎损害了他人利益,所以志愿者在志愿活动中导致他人受损害的状况时有发生,而在这种情况下责任由谁承担——志愿者自己、志愿组织、还是其他,如何去正确的适用《侵权责任法》,现在的法律规定中也没有明确的回答。综上所述,如果法律不能以明确的规定保障志愿者及服务对象的利益,起到风险分配的作用,就不能消除志愿者及服务对象在志愿活动中的顾虑,很可能导致他们束手束脚、有所防范;当损害发生后,由于统一法律规范的缺失,双方的争议难以协调解决,甚至到诉讼阶段,法院如何援引规定都是一个较困难的问题。是故亟待去完善有关志愿活动的法律法规,同时建立起多重的机制,以此规范志愿者行为,保护各方权益,以真正实现志愿活动存在的价值。
[Abstract]:With the rapid development of our economy and the trend of globalization, the emergence of public affairs is becoming more and more frequent, and the types of public affairs are becoming more and more diversified. At the same time, the social polarization is becoming increasingly serious, and a large number of vulnerable groups exist. Relying on the strength of the state and society alone can not meet the demand, society calls for volunteers. Taking advantage of this easterly wind, voluntary activities are widely carried out throughout the country and even around the world. The existence of volunteers has brought many positive effects to our society. However, while volunteering serves the society, the participants are at risk of losing them. Specifically, it is divided into the risk of the third party damage caused by the volunteer and the risk of the volunteer's own damage. When these two kinds of risks occur, they are faced with the problem of how to judge the responsibility and how to make up for the interests of the injured person. However, based on the fact that voluntary service does not involve the inherent attribute of economic benefits, the concern and protection of volunteer rights and interests are quite lacking in practice. At the same time, because of the commonweal nature of voluntary activities, the sharing of liability for the harm caused by volunteers has become a thorny problem. In voluntary activities, risks are unavoidable. For example, in earthquake relief volunteer activities, the risk of volunteer damage is greater, when the volunteer is damaged, who should bear the responsibility-government, insurance company, volunteer service organization, or something else. This question cannot be answered in today's legal provisions. On the other hand, the quality of volunteers is uneven, motivation is not the same, we can not rule out some people with not very good motivation to participate in voluntary activities, nor can we rule out that volunteers inadvertently hurt the interests of others, So the situation in which volunteers cause damage to others in volunteer activities happens from time to time, and in this case, who is responsible-the volunteers themselves, the voluntary organizations, or what else, how to apply the Tort liability Law correctly? There is also no clear answer in the present law. To sum up, if the law does not explicitly protect the interests of volunteers and their clients and play a role in risk allocation, it will not eliminate the concerns of volunteers and clients in voluntary activities, and will probably lead them to put their hands on one's back. Prevention; When the damage occurs, due to the lack of unified legal norms, the dispute between the two sides is difficult to resolve in coordination, even in the litigation stage, how to invoke the provisions of the court is a more difficult problem. Therefore, it is urgent to perfect the laws and regulations of voluntary activities, and establish multiple mechanisms to regulate volunteer behavior, protect the rights and interests of all parties, so as to truly realize the value of the existence of voluntary activities.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D632.9

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