Viewpoint | "Persuade You to Drink More": How to Party and Drink Without Responsibility?
Published:
2021-11-30
Cause of action Right to health disputes Brief facts of the case Plaintiff Li mou, who lives in other places all the year round, went to a certain place to attend the wedding due to his friend's marriage. after that, he and the 5 defendants had dinner in a hotel on March 1, 2020, which ended at about 23 o'clock. On the way back to the hotel, the plaintiff Li mou and the defendants Wang mou and Xie mou were together to urn, the plaintiff accidentally fell to the ground and fell into a coma. the accompanying Wang mou and Xie mou called 120, and the plaintiff was immediately sent to the hospital for emergency treatment. the emergency diagnosis was "preliminary diagnosis: acute alcoholism, acute closed craniocerebral injury", and the admission diagnosis was "1. acute closed craniocerebral injury; multiple brain contusion and laceration, left frontal lobe contusion and intracerebral hematoma, diffuse axonal injury, traumatic subarachnoid hemorrhage, scalp contusion, frontal fracture, epilepsy, cerebral hernia; 2, acute myocardial infarction; 3, hemorrhoids", the external cause of injury and poisoning is "accidentally leaning back on the ground, injuring the head". In this case, the defendant Wang is the organizer of the party, Li and Xie usually work and live in other places, Wang, Li and Xie are in close contact, and the other three female defendants are not familiar with the plaintiff Li. In the course of the lawsuit, the plaintiff entrusted the appraisal institute according to law to identify his disability grade, the number of nurses, the duration of nursing and the duration of nutrition; and entrusted the judicial appraisal institute for mental illness according to law to identify his mental disability grade, the number of nurses, the duration of nursing and the duration of nutrition. Analysis of referee rules Co-drinking behavior is a collective activity organized between co-drinkers, and co-drinkers have appropriate reminders, care, protection, notification and other duty of care. In combination with this case, first of all, as a person with full capacity for civil conduct, the drunk casualty should foresee the harmful consequences of drinking and control his own behavior when drinking, but he still drinks more than he can bear, and then the plaintiff should bear the absolute main responsibility (generally 70%-80%). Second, the responsibility comes from the obligation, the obligation comes from the statutory or agreement. The obligation of safety and security is a kind of legal obligation. When drinking at a party, the organizer can not be exempted from liability in the case of accidental injury and death after drinking because of its special role in the party banquet. The organizer shall have the duty of care for the personal safety of the participants of the party banquet, and shall have the obligation to provide necessary assistance, care and escort. The specific obligations are as follows: the organizer has the obligation to consider and grasp the general situation of each person, and according to the prior understanding of each person, take the initiative to judge the physical characteristics of the participants, timely remind and advise everyone to drink properly, if there is excessive drinking, give necessary assistance and proper care. If the plaintiff feels unwell after drinking at the party, the organizer is obliged to take timely, reasonable and necessary measures. For example, according to the experience of ordinary people to judge the physical condition of peers, if the body out of control, should also arrange effective ways to ensure safe home, if necessary, should also be sent to a doctor for observation. Party organizers: absolute secondary responsibility (10%-15%) Third, ordinary co-drinkers cannot stay out of it either. Drinking itself has a certain risk, which will reduce people's control and judgment. Drinking together means that companions let themselves be in a dangerous situation. Companions are generally relatives and friends. It is precisely because of trust and closeness that they drink together. Therefore, based on the principle of good faith, the first act of joint participation in drinking gives rise to the obligation of mutual assistance, and ordinary co-drinkers are also obliged to provide necessary help and support. General co-drinkers: general liability (2%-5%) Fourth, the three female defendants in this case are not liable for compensation due to special circumstances. Defendant women 1 and 2 did not drink alcohol and did not act to persuade them to drink. Defendant female 3, who is not familiar with the plaintiff, did not drink alcohol, did not persuade her to drink and left the table early. The plaintiff's damage consequences do not have a direct causal relationship with the three female defendants, and the three female defendants are not at fault and should not bear civil liability in this case. Extended interpretation 1. attending the party, the organizers and participants of the party signed the "Safety responsibility commitment" and "exemption Agreement". Can the organizers and drinkers be exempted from liability? Article 8 of the Civil Code Civil subjects engaged in civil activities shall not violate the law, public order and good customs. Article 153 of the Civil Code Civil juristic acts that violate the mandatory provisions of laws and administrative regulations shall be null and void. However, the mandatory provisions do not cause the civil juristic act to be invalid. Civil juristic acts that violate public order and good customs are invalid. Article 506 of the Civil Code The following disclaimers in the contract are invalid: (I) causing personal injury to the other party; (II) cause damage to the other party's property due to intentional or gross negligence. According to the above legal provisions, we can clearly conclude that these "exemption clauses" signed by co-drinkers are invalid because they violate the mandatory provisions of our laws and regulations. Since the law stipulates the safety guarantee obligation of the organizer, the organizer has the obligation to take certain measures in advance to prevent the damage, such as asking about the physical condition in detail, mobilizing family members to actively participate in the care, actively preparing necessary drugs, seeking professional help, etc., instead of using the agreement as a shield. By signing a disclaimer, the organizers try to evade responsibility not only does not conform to the general moral standards of the society, but also violates the mandatory provisions of the law. Therefore, even if the co-drinker signs the so-called "Party Drinking Responsibility Letter", if the co-drinker suffers injury or death after drinking, and the co-drinker is at fault, he still needs to bear the corresponding responsibility and is not exempt from liability by signing an exemption agreement. 2. what acts and circumstances, party drinking to bear legal responsibility? 1, due to alcohol induced disease, disability and even death Knowing that drunk people cannot drink alcohol, they cause heart disease, high blood pressure and other diseases to cause disability and death due to drinking; If the drinker induces the disease without knowing it, the drinker does not need to bear the fault liability, but the principle of fair responsibility should also bear the liability for compensation. That is to say, the drinker should bear the responsibility regardless of whether he knows that the other party cannot drink, but the former must bear greater responsibility. 2. Forced drinking In the process of drinking, there are obvious compulsive behaviors of persuading, such as verbal coercion, stimulation of the other party, forced drinking, etc., for the damage results, the persuading person should bear the corresponding liability for compensation. 3, drunk driving, bathing, strenuous exercise is not discouraged In the case of knowing that the other party is drunk driving and does not dissuade it, once the damage results occur, the co-drinker must bear certain responsibilities. If the drunken person does not listen to the dissuasion, the co-drinker can be relieved or exempted. However, if the co-drinker knows that the drunken person drinks too much, is incoherent and delirious, the co-drinker should be dissuaded from drinking, and if the accident occurs due to the failure to dissuade him when he can be dissuaded, he should also bear the corresponding responsibility. 4. Failure to deliver the drunk safely If the drunken person has lost or is about to lose control of himself, is unconscious and cannot control his own behavior, the co-drinker has a certain duty of guardianship at this time. If the co-drinker does not take the drunk to the hospital or let it arrive at a place of care (such as home), if an accident occurs at this time, the co-drinker shall bear the corresponding liability.
Cause of action
Right to health disputes
Brief facts of the case
Plaintiff Li mou, who lives in other places all the year round, went to a certain place to attend the wedding due to his friend's marriage. after that, he and the 5 defendants had dinner in a hotel on March 1, 2020, which ended at about 23 o'clock. On the way back to the hotel, the plaintiff Li mou and the defendants Wang mou and Xie mou were together to urn, the plaintiff accidentally fell to the ground and fell into a coma. the accompanying Wang mou and Xie mou called 120, and the plaintiff was immediately sent to the hospital for emergency treatment. the emergency diagnosis was "preliminary diagnosis: acute alcoholism, acute closed craniocerebral injury", and the admission diagnosis was "1. acute closed craniocerebral injury; multiple brain contusion and laceration, left frontal lobe contusion and intracerebral hematoma, diffuse axonal injury, traumatic subarachnoid hemorrhage, scalp contusion, frontal fracture, epilepsy, cerebral hernia; 2, acute myocardial infarction; 3, hemorrhoids", the external cause of injury and poisoning is "accidentally leaning back on the ground, injuring the head".
In this case, the defendant Wang is the organizer of the party, Li and Xie usually work and live in other places, Wang, Li and Xie are in close contact, and the other three female defendants are not familiar with the plaintiff Li. In the course of the lawsuit, the plaintiff entrusted the appraisal institute according to law to identify his disability grade, the number of nurses, the duration of nursing and the duration of nutrition; and entrusted the judicial appraisal institute for mental illness according to law to identify his mental disability grade, the number of nurses, the duration of nursing and the duration of nutrition.
Analysis of referee rules
Co-drinking behavior is a collective activity organized between co-drinkers, and co-drinkers have appropriate reminders, care, protection, notification and other duty of care.
combined with this case,First of allAs a person with full capacity for civil conduct, drunk casualties should foresee the harmful consequences of drinking and control their own behavior when drinking, but they still drink more than they can bear, and the plaintiff should bear the absolute main responsibility (generally 70%-80%) after the casualty accident occurs.
SecondResponsibility comes from obligations, obligations from statutory or contractual. The obligation of safety and security is a kind of legal obligation. When drinking at a party, the organizer can not be exempted from liability in the case of accidental injury and death after drinking because of its special role in the party banquet. The organizer shall have the duty of care for the personal safety of the participants of the party banquet, and shall have the obligation to provide necessary assistance, care and escort. The specific obligations are as follows: the organizer has the obligation to consider and grasp the general situation of each person, and according to the prior understanding of each person, take the initiative to judge the physical characteristics of the participants, timely remind and advise everyone to drink properly, if there is excessive drinking, give necessary assistance and proper care. If the plaintiff feels unwell after drinking at the party, the organizer is obliged to take timely, reasonable and necessary measures. For example, according to the experience of ordinary people to judge the physical condition of peers, if the body out of control, should also arrange effective ways to ensure safe home, if necessary, should also be sent to a doctor for observation. Party organizers: absolute secondary responsibility (10%-15%)
ThirdOrdinary drinkers can't stay out of it either. Drinking itself has a certain risk, which will reduce people's control and judgment. Drinking together means that companions let themselves be in a dangerous situation. Companions are generally relatives and friends. It is precisely because of trust and closeness that they drink together. Therefore, based on the principle of good faith, the first act of joint participation in drinking gives rise to the obligation of mutual assistance, and ordinary co-drinkers are also obliged to provide necessary help and support. General co-drinkers: general liability (2%-5%)
FourthThe three female defendants in this case are not liable for compensation due to special circumstances. Defendant women 1 and 2 did not drink alcohol and did not act to persuade them to drink. Defendant female 3, who is not familiar with the plaintiff, did not drink alcohol, did not persuade her to drink and left the table early. The plaintiff's damage consequences do not have a direct causal relationship with the three female defendants, and the three female defendants are not at fault and should not bear civil liability in this case.
Extended interpretation
1. attending the party, the organizers and participants of the party signed the "Safety responsibility commitment" and "exemption Agreement". Can the organizers and drinkers be exempted from liability?
Article 8 of the Civil Code
Civil subjects engaged in civil activities shall not violate the law, public order and good customs.
Article 153 of the Civil Code
Civil juristic acts that violate the mandatory provisions of laws and administrative regulations shall be null and void. However, the mandatory provisions do not cause the civil juristic act to be invalid.
Civil juristic acts that violate public order and good customs are invalid.
Article 506 of the Civil Code
The following disclaimers in the contract are invalid:
(I) causing personal injury to the other party;
(II) cause damage to the other party's property due to intentional or gross negligence.
According to the above legal provisions, we can clearly conclude that these "exemption clauses" signed by co-drinkers are invalid because they violate the mandatory provisions of our laws and regulations. Since the law stipulates the safety guarantee obligation of the organizer, the organizer has the obligation to take certain measures in advance to prevent the damage, such as asking about the physical condition in detail, mobilizing family members to actively participate in the care, actively preparing necessary drugs, seeking professional help, etc., instead of using the agreement as a shield.
By signing a disclaimer, the organizers try to evade responsibility not only does not conform to the general moral standards of the society, but also violates the mandatory provisions of the law. Therefore, even if the co-drinker signs the so-called "Party Drinking Responsibility Letter", if the co-drinker suffers injury or death after drinking, and the co-drinker is at fault, he still needs to bear the corresponding responsibility and is not exempt from liability by signing an exemption agreement.
2. what acts and circumstances, party drinking to bear legal responsibility?
1, due to alcohol induced disease, disability and even death
Knowing that drunk people cannot drink alcohol, they cause heart disease, high blood pressure and other diseases to cause disability and death due to drinking;
If the drinker induces the disease without knowing it, the drinker does not need to bear the fault liability, but the principle of fair responsibility should also bear the liability for compensation. That is to say, the drinker should bear the responsibility regardless of whether he knows that the other party cannot drink, but the former must bear greater responsibility.
2. Forced drinking
In the process of drinking, there are obvious compulsive behaviors of persuading, such as verbal coercion, stimulation of the other party, forced drinking, etc., for the damage results, the persuading person should bear the corresponding liability for compensation.
3, drunk driving, bathing, strenuous exercise is not discouraged
In the case of knowing that the other party is drunk driving and does not dissuade it, once the damage results occur, the co-drinker must bear certain responsibilities. If the drunken person does not listen to the dissuasion, the co-drinker can be relieved or exempted.
However, if the co-drinker knows that the drunken person drinks too much, is incoherent and delirious, the co-drinker should be dissuaded from drinking, and if the accident occurs due to the failure to dissuade him when he can be dissuaded, he should also bear the corresponding responsibility.
4. Failure to deliver the drunk safely
If the drunken person has lost or is about to lose control of himself, is unconscious and cannot control his own behavior, the co-drinker has a certain duty of guardianship at this time.
If the co-drinker does not take the drunk to the hospital or let it arrive at a place of care (such as home), if an accident occurs at this time, the co-drinker shall bear the corresponding liability.
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