Criteria for recognizing righteousness and courage

Poverty alleviation and help the poor, justice and courage is the traditional virtues of the Chinese nation, to promote social justice, and promote the progress of human civilization plays a very important role. In real life, see justice, see danger, and even the righteous behavior and legitimate rights and interests of those who do not effectively protect the phenomenon occurs from time to time. In order to maintain social justice, encourage the behavior of justice and courage, protection of justice and courage, so that the blood of heroes no longer shed tears, it is necessary to legally on the characteristics of justice and courage, type and its protection principles, measures to provide legal protection for justice and courage.

One, the legal characteristics of justice

Justice and courage refers to the legal duties or obligations, in order to protect the national interests, collective interests, or the personal and property safety of others, regardless of personal safety and danger, to fight with illegal and criminal acts or rescue and relief behavior. The nature of justice is a moral obligation, belongs to a kind of factual behavior, and does not belong to the legal act; In terms of the content of its behavior, can be both legal and factual behavior, therefore, in the righteousness and courage does not require the perpetrator to have the corresponding civil legal act, but only require the perpetrator to have the corresponding cognitive ability. In some cases, the act of bravery does not produce legal acts or consequences related to the perpetrator, such as assisting the police in apprehending the suspect, and the individual has not suffered any harm, and his or her behavior is over, and does not produce any consequences of the law. However, when the person or property of the perpetrator is harmed, or when the perpetrator causes damage to the person or property of another person, the question of the assumption of legal responsibility arises. Therefore, there is a need for the characteristics of the righteousness and courage from the law to clarify, in order to recognize the righteousness and courage and its legal responsibility.

Analysis, the following legal features:

1, the subject is a natural person. Generally a natural person with civil capacity, limited capacity in the implementation of its age and intelligence, should also become the subject of the act of bravery; civil incapacity in the act of bravery, whether to become the subject of the act, should be determined on a case-by-case basis. According to China's "general principles of civil law" provisions, including minors under 10 years of age and mental patients can not discern their own behavior, their civil activities by his legal agent, otherwise their behavior will be invalid. Mentally ill persons who are unable to recognize their own behavior are not responsible for their own behavior due to their lack of autonomy, and cannot be the subject of righteousness and courage. Minors under 10 years of age because of independent cognitive ability, can become the subject of courage. Such as nine-year-old children to help with their play into the shallow water and can not climb up and life-threatening child, its behavior can not be due to its civil incapacity and found that is not the act of bravery. In addition, foreign nationals of our citizens and citizens of their own citizens abroad, shall also be the subject of the act of bravery.

2, the actor subjectively have for others to avoid or reduce the loss of personal or property rights and interests. This is the establishment of the subjective elements of justice. That is to say, the perpetrator is in the knowledge of other people's lives or property in danger, and consciously take the initiative to rescue, and its purpose and motive is to make other people's lives or property to avoid or less loss.

3, the perpetrator objectively implemented to protect the rights and interests of others or property. Including the courage to fight with the ongoing illegal and criminal behavior; the state, collective and individual legitimate rights and interests of the protection or rescue, so as to prevent or mitigate the loss; take the initiative to capture, transfer the fugitive or wanted suspects, fleeing criminals, or to assist in the detection of major crimes, and so on.

4. The behavior of the perpetrator does not violate laws and regulations, social public **** interest and social morality.

5. The perpetrator has no statutory or contractual obligation to help. Unstatutory obligations refers to the perpetrator can not be statutory rights or obligations, the perpetrator if the legal obligation to rescue, it does not constitute a righteousness. Such as police pursuing fugitives, guardians to rescue the ward. The obligation without agreement means that there is no obligation to rescue between the actor and the person being rescued due to the agreement, which can be either written or oral.

6. The act of bravery is generally made in an emergency situation. Such emergencies can be caused either by man or by natural causes.

Generally speaking, a person's behavior only has the above characteristics, in order to become the act of bravery, which is an important sign to test the establishment of bravery.

Second, the type of bravery and its principles of treatment

Seeing bravery according to different standards have different classifications, in the occurrence of conflicts and disputes in accordance with different principles and standards of treatment. Because the person and property of those who are brave in the damage has legal significance, so this paper focuses on the analysis of the person and property of those who are brave in the damage and easy to cause conflicts and disputes in the classification and its handling principles.

The righteousness and courage in accordance with whether there is an aggressor or breach of contract is to distinguish, can be divided into the following types:

One is in the righteousness and courage in only the actor and the specific protection of the object, i.e., the beneficiary, no aggressor or breach of contract. Such as rescuing a person who fell into the water.

The second is in the righteousness and courage in only the actor and the specific aggressor, but no beneficiary. Such as the actor to capture the fugitive and was injured by the fugitive.

Third, in addition to the perpetrator of the act of bravery, both the aggressor and the specific object of protection, that is, the beneficiary.

Fourth, in addition to the perpetrator in addition to righteousness, both the violator and the specific object of protection, that is, the beneficiary. Such as in the park to help people in the water, the people in the water were saved, but the rescuer was stuck in the water under the tree branches died.

The type of courage is different, the legal relationship that occurs is also different, and therefore deal with the principle of the basis and responsibility is also different.

In only the actor and the beneficiary of the legal relationship of bravery, there are two different opinions on how to apply the law:

One of the opinions that should be applied to the principle of fairness. According to Article 132 of the General Principles of Civil Law, "If none of the parties concerned is at fault for causing the damage, the responsibility can be shared by the parties concerned according to the actual situation." In the righteousness, the rescuer and the rescued are not at fault, and the rescuer's damage and its righteous behavior has a causal relationship, so the compensation for its damage can be applied to the principle of fairness, by the two parties to share appropriately.

The second opinion is that the principle of causeless management should be applied. Uncausal management refers to the behavior of voluntarily managing the affairs of others or serving for others without legal or contractual obligations, in order to avoid the loss of others' interests. In the relationship between the righteousness and courage, the perpetrator of the righteousness and courage to save others, neither statutory obligations, nor agreed obligations, its subjective state of mind is to save others, and has carried out the act of saving others, its behavior in line with the constituent elements of the management of the uncaused, so it should be applied to deal with the principle of the management of the uncaused.

In the existence of the infringer or violator of the legal relationship of courage, there are two different opinions on the applicable law:

One of the opinions that in the infringer direct infringement of the relationship of courage, apply the basic principles of tort to determine the infringer's liability, can not be found or infringer is unable to compensate for the infringement of the principle of causality, and then apply to the beneficiary of the principle of causality To be compensated.

One opinion is that, as long as the infringement exists, only the principle of prevention of infringement applies, and not the principle of tort liability or causeless management, that is, the provisions of Article 109 of the General Principles of Civil Law apply.

Analysis of the above opinions:

(1) In the legal relationship of courage and bravery in which there is no aggressor or violator, only the perpetrator and the beneficiary, the principle of causeless management should be applied. The reasons are:

1, there is more compatibility between the management without cause and the righteousness, the actors have the intention to benefit for others, objectively has been implemented for the management of other people or services, the implementation of the behavior are not statutory or agreed obligations. In the absence of clear provisions of the law, the act of bravery should be a higher level of "management or service"

2, the application of uncaused management better reflect the justice of the legislation. Although the principle of fairness is also no fault of the parties involved in the damage caused by the application of the principle, but the principle of the legislative intent and value orientation from the social justice and solidarity of the rules of life, emphasizing the subjective fault of the parties involved in the loss of equity, the loss caused by the parties to make a share. Although the management of no cause also emphasizes the parties without fault, but from the principle of the legislative intent and value orientation analysis, its focus is on the promotion of social justice and morality, and the maintenance of public morality on the protection of the necessary expenses paid, from the perspective of the promotion of justice and courage to analyze the social significance of the principle of fairness than the social justice can be better reflected.

3, from the perspective of compensation for damages, the application of causeless management is better able to protect the legitimate rights and interests of the righteous. The principle of equity is from a fair point of view, according to the party's specific property status or other circumstances, fair share of the loss. On the other hand, no cause management is "entitled to reimbursement from the beneficiary for the necessary expenses incurred as a result". Necessary expenses include expenses directly attributable to the isolation or servicing activity, as well as actual damages suffered in that activity. Obviously, the scope of application of the principle of causeless management is much narrower than the principle of equity, but the specific protection is more intense and more favorable to the protection of rights.

In summary, the principle of fairness and the principle of uncaused management is no fault for the application of the principle of the premise, but the civil law of the civil law of the courage to be compatible with the management of the uncaused, and from the value of the law of the analysis of the uncaused management of the damages caused by the application of the uncaused management of the damage caused by the full amount of reimbursement, a better embodiment of the advocate of courage and rights and interests of the protection of the rights and interests of the courageous, therefore, in the only actor and beneficiary of the courageous legal relations. Therefore, in only the actor and the beneficiary of the legal relationship, the principle of causeless management is applied to deal with the damage caused by the courageous behavior.

(2) In the relationship of courage and bravery where there is an aggressor or a person liable for breach of contract, the theory of prevention of aggression should be applied to deal with it. The reasons are:

1, to prevent infringement is a separately established behavior under the law, there is infringement of the existence of the courage to meet the characteristics of the prevention of infringement. Article 109 of the general principles of civil law provides: "for preventing, stopping the state, collective property or other people's property, personal injury to their own damage, by the aggressor to bear the responsibility for compensation, the beneficiary may also give appropriate compensation." In this regard, the Supreme People's Court stipulates in Article 142 of the Opinions on Several Issues Concerning the Implementation and Enforcement of the General Principles of the Civil Law (for Trial Implementation) that, "In order to safeguard the lawful rights and interests of the State, the collective, or other people, one suffers damage to oneself, and in the event that the aggressor is unable to make compensation or that there is no aggressor, if the victim makes a request, the people's court may, in accordance with the number of benefits to be derived by the beneficiary and its economic situation, order the beneficiary to make appropriate compensation." This makes clear provisions on the composition of preventing infringement and the assumption of responsibility. In the existence of infringement of the righteousness and courage, the righteousness and courage is to prevent the infringement of the person, its rescue, stopping the behavior is also to prevent the infringement of the behavior, in line with the composition of the act of preventing infringement.

2, the application of the theory of prevention of infringement can be independent, one-time solution to the problem of compensation for the loss of courageous people. That is, the responsibility for compensation is borne by the aggressor, the beneficiary does not bear the responsibility for compensation; there is no aggressor or the aggressor is unable to compensate for the case, only by the beneficiary of appropriate compensation.

Of course, there are many specific cases of bravery, here is only a general classification of the types of bravery, and put forward the principles of treatment.

Three, dealing with the conflict caused by the courage to pay attention to a few problems

1, whether the courageous person is at fault. Courageous behavior is advocated by society, generally in emergency situations, the performance is a kind of bravery, not afraid of sacrifice, dedication to their own safety is often not thinking, put aside, too late to have too much preparation and take the necessary measures to help, in this case, if the perpetrator is required to bear the responsibility for the fault, obviously does not correspond to the emergency situation, but also contrary to the emotional and legal reasoning. Legal theory. If one sees a person fall into the water and jumps into the water to save him, but he is drowned because he does not know how to swim, does he bear the responsibility for his own death because he knows that he does not know how to swim? Another example is to know that the fire will burn people, but in order to rescue national property into the fire and was burned. These can not be found that the perpetrator is subjectively at fault and bear the responsibility of fault. Otherwise, no one will dare to see the righteousness of the righteousness of the righteousness of the righteousness of the righteousness of the righteousness of the righteousness of the righteousness of the righteousness of the righteous. Therefore, the courageous person subjective duty of care can not be required or too high, as long as the actor for the benefit of others and do a good person should pay attention to the duty of care, the courageous is established. Only in the name of the perpetrator of the damage in the name of justice and real time, in order to pursue the subjective fault of the perpetrator, at this time, the nature of the change in the nature of the courage to become a tort.

2, whether the righteousness of the realization of the interests of the rescued as a precondition for the establishment of the righteousness. For the same reasons mentioned above, the courageous act is generally carried out in the emergency situation, the purpose of its behavior is only to help others, but does not achieve the purpose of help in this regard. Its meaning to help is a subjective motive, whether others ultimately benefit is an objective result, although the two have a close connection, but the objective result does not depend entirely on the subjective motive. If the objective results as a judgment of whether the actor has the meaning of courage, is actually required to engage in courage must achieve a certain objective effect, regardless of the subjective motivation of the actor, which obviously impose a great risk to the actor, so that the actor in the courage to consider whether it is worth the risk of failure to achieve a certain effect, and is not conducive to encouraging the courage to do so. Therefore, can not be the realization of the interests of the rescued as a precondition for the establishment of justice, as long as the actor has the intention of justice, justice is established, regardless of the result.

3, the courageous for the public good and damaged, in the absence of tortfeasor and clear beneficiary, how to deal with. Should be based on the provisions of the management of no cause, the beneficiary of compensation. Because it is for the public welfare, no infringer and specific beneficiaries, should be compensated by the state, specifically by the government designated department responsible for compensation from the revenue.

Four, the judicial protection of courageous several suggestions

The reason why the courageous cause many disputes, causing a lot of controversy, is the legislation is imperfect, inadequate protection measures and many other factors, therefore, measures should be taken to increase the judicial protection of courageous people, to lift their worries.

First, to strengthen legislation. Seeing justice, in dealing with disputes arising from bravery how to apply the law, who should be responsible for, how much, more controversial. The same beneficiaries, the application of the principle of fairness, the principle of non-causal management or the principle of prevention of infringement, will bear the different responsibilities, these and the courage to see no clear legislative provisions have a lot to do. Throughout the constitution, criminal law, general principles of civil law and other laws and regulations, have not made clear and specific provisions for justice and bravery, especially for justice and bravery in its legitimate rights and interests of how to deal with the damage, protection, but also "can not be relied upon", so that the same example of different arguments, different results, the legitimate behavioral rights and interests of the parties concerned As a result, there are different arguments and different outcomes in the same cases, and the legitimate rights and interests of the persons concerned are not effectively supported by society, and their legitimate rights and interests are not properly protected. Although some provinces and localities have formulated some regulations on the protection of bravery, there are a number of differences in the recognition and protection of bravery, not to mention that some places do not even have such regulations. This leads to the fact that, for the same act of bravery, some are recognized and rewarded and enjoy higher treatment, while others have lower or even no treatment, and there is de facto and legislative inequality. Therefore, should be formulated as soon as possible the national unified protection of bravery laws or regulations, the recognition of bravery standards, rewards and treatment, safeguards, etc., in accordance with the law to protect the legitimate rights and interests of those who have seen the bravery, to ensure that the victims get the appropriate compensation or indemnification, from the law to support and protect the bravery.

Secondly, to increase prevention, crackdown, and severely punish all kinds of crimes, to eliminate the hidden dangers of security accidents. To start from the source, in the elimination of hidden security accidents, prevention of illegal and criminal efforts to prevent the occurrence of security accidents, illegal and criminal damage to people's lives and property. At the same time, we must increase the sanctions, crackdown, not to engage in a gust of wind, can not allow criminals to repeat the crime, kill back, to stop illegal and criminal justice to focus on the protection of those who see the courage to retaliate against those who see the courage to be punished severely, and will not be lenient.

Third, to improve the protection, lifting the righteous and courageous people's worries. Society as a whole, especially the party and the government, the judiciary to maintain the stability of the overall importance of the recognition of courage and appeasement work, must not let the good people suffer, so that the courageous people cold hearted. Through the establishment of a government reward fund, the government from a series of problems such as medical care, life, education, employment and personal safety of those who have acted with bravery. The losses suffered by the righteous and their families, through the aggressor compensation, beneficiary compensation, government funding and other measures to protect, at the same time, the righteous get compensation, compensation does not affect the government's awards and donations from all sectors of society.