客运承运人免责事由研究.doc

Undergraduate Thesis opening reportThesis Passenger carrier shall studyIn practice, the carrier failed to result in a comprehensive and complete fulfillment of obligations are often more complex, if all of the carrier to assume responsibility, obviously unfair. Undertake road passenger carrier within a reasonable period in the agreement or the passengers safely to the agreed location task. If the carrier is not fully and completely fulfill this obligation, whether or not to have to bear the responsibility and liability for breach of contract? Exemption under what circumstances can it? Carrier is not fully, complete the main obligations: Intentionally or negligently caused the carrier. Such as the passenger train behind schedule, delayed; vehicles do not follow the convention site parking; to provide a vehicle or service does not match the agreement; passenger traffic accidents caused by loss of personal property; due to carrier fault caused damage to baggage and other items missing. Passengers their own causes. If the passenger fails to pay or complete payment of the freight; travelers using cars for illegal activities; passengers in the compartment sudden stroke, heart disease, mental illness and other diseases; visitors alcoholism, drug abuse, suicide, fighting or deliberate violation of safety regulations and other damage caused by their own ; visitors bring their own responsibility for causing damage to items such as non-carriers. Infringement caused by third party. If the carrier can not be infringed by a third party to fulfill their obligations; passengers caused by a third party against the person and property damage (including by the trains and carriages against a third person in robbery, kidnapping, rape, detention, assault, murder etc.). Force majeure factors. As a result of war, riots, strikes, traffic congestion and other causes of vehicle can not run; running suddenly encountered heavy snow, floods, typhoons, earthquakes, mudslides, landslides, bridge collapse, the ground subsidence and other conditions caused by interruption of vehicles to run and so on. Legal provisions on exemptions The carrier of road passenger transport issues, contract law the provisions of Article zero-two, the carrier during transport passengers should be liable for damages of casualties, but the casualties are passengers own health or the carrier proves that causes casualties Passengers intentional misconduct or gross negligence is excluded. The provisions of Article Three of zero, the cabin during transport items damaged or lost, the carrier is at fault, shall be liable for damages. Civil Law one hundred and seventh article, performance of the contract due to force majeure or causes damage to others, does not bear civil liability, except as otherwise provided by law. Ministry of Communications car passenger transport rules the seventy-second article: that occur during transportation of passengers by passenger liability following conditions: Passengers without a ticket, or inconsistent with the provisions of an invalid ticket ride; conceal intoxication, malignant diseases car pollution and endanger other passengers; entrainment of dangerous goods or other prohibited articles pitted the government, on the train, checked; damage to the bus station facilities and equipment or cause injury to other passengers; self-line packages and belongings lost , damaged; bus stopover on the train on time caused not by mistake by the leakage; passenger car on the way their own casualties and damage caused by disease; the other problems occur because passengers. The carrier shall have the provisions of the law more simple. Automobile passenger transport rules set out in more detail though, but only ministerial regulations. Under the Legislation Law, with ministerial regulations to the provisions of lack of effectiveness of civil exemptions. The carrier may avoid liability issues 1. Is a reason for visitors. Passengers arriving on time is a reason for not traveling, or prior breach of contract caused by passengers. For passengers without a ticket, an invalid ticket or bus ticket does not meet the requirements, or exceeds the distance shipped, leapfrog not pay the fare for passenger transportation; passengers refused to accept the bus station security, adhere to the carry or in the luggage easily burning explosive, toxic corrosive, radioactive and may endanger the safety of life and property on transport of dangerous goods or other prohibited items; passengers their own health reasons. Passengers in transit, such as sudden illness, or suffering from serious infectious diseases have a significant impact on public health and the need to force and threat of isolation for the treatment; passengers in the car self-injury, suicide, or intentional violation of passenger car safety regulations caused self harm; passengers caused by illegal and criminal. If the passenger is being wanted by the investigation agencies of criminal suspects or criminals, the passenger cars for use in illegal activities; visitors caused their own fault items damaged or lost. Importation of prohibited items, such as seized by authorities seized, the line package package complete internal defects, deterioration. 2. Is a force majeure. Including the two cases: Blizzard, floods, typhoons, earthquakes, landslides, caused by natural factors such as force majeure; war, riots, strikes and other social factors of force majeure, the carrier is not liable. Apply the principle of equity to balance the interests of passengers and the carrier. 3. Is a third reason. Passengers by the third against the situation is more complex, common carriers can not be exempt. However, if in the process, the carrier is doing to the obligation to inform passengers, within reasonable limits of safety and security and rescue obligations, reduce or exempted from liability. Should be noted that the above disclaimer, the carrier should bear the burden of proof, if not proof, they should bear the responsibility. Contract Law Section 290 provides: The carrier shall in the prescribed time or within a reasonable period of passengers and goods to the agreed place of safety. Article 302 stipulates: The carrier shall transport the casualties to passengers liable for damages responsibility, but the injury is caused by the passengers own health or that of visitors intent, gross negligence, except caused. in accordance with the provisions of the preceding paragraph shall apply free of charge, discount ticket holders or permitted by the carrier aboard a passenger without a ticket. s 121 provides: Where a party for breach of contract caused a third person, it shall be liable for breach to the other party. and the third party dispute between, according to law or in accordance with the agreed solution. Accordingly, the carrier shall will reach the destination of passenger safety, it is the carriers contractual obligations, failure to fulfill this obligation shall be liable for breach. Should note that the carrier assumed the passenger casualties are liquidated damages liability without fault. During transport, passengers may be due to both the casualties caused by the carrier, may not be caused by the carrier (such as third party infringement), but no matter what the reasons for, as long as no law exemptions The carrier should be liable. Such as medical expenses, lost income, expenses, the disabled living allowance, funeral expenses, etc., should be compensation by the carrier, unless the grounds of relief. exemptions have a. Passengers their own health reasons, mainly refers to passenger illness, maternity and other reasons. b. Passenger intentionally. The so-called intentional, knowingly refers to passenger damage will occur, and the results of the implementation of this act or the occurrence of indulgence. c. Passenger gross negligence. The so-called fault is the passenger should be predictable and foreseeable damage can occur due to negligence or over-confidence which led to the damage occurred. Whether gross negligence, should be specific conditions. After two defenses, the carrier shall bear the burden of proof. Carrier proves that the injury was due to a general negligence and force majeure, and not exempt. the responsibility not only apply to ordinary visitors, but also applies to the following three special visitors: a. Free of charge in accordance with regulations, such as children under 1.1 meters; b. Discount ticket holders, such as college students; c. Without a ticket aboard the carriers permission. , Contract Law adopted strict liability as liability for breach of the responsibility principle, although many words reasonable grounds for the legislation, but it does exist failings, it is perhaps difficult to have everything perfect with the rules it. On balance, I believe that the principle of fault liability should be the responsibility principle, as breach of contract. First, this arrangement is conducive to the scientific achievements of debt law system; Second, this arrangement suited to Chinas legal environment (the reason to pursue common law strict liability, has its own cultural origins, and in order to eliminate the strict liability caused by too stringent world irrationality, the judge explained the contract has more power), which corresponds to the general public has accepted the fault and compensation relative proportion of the legal consciousness, to the neglect of many years of training from traditional moral values, customs and legal awareness, and undesirable: again, contract law itself implies the meaning of freedom and autonomy are also calling for essentially the application of fault liability; Finally, the practical application of fault liability from the point of view, as the principle of attribution is appropriate. In view of this, I tend to agree with the fault principle to replace the strict liability. Adhere to the premise of this theory, think again involved in legal relations case, some confusion can be solved. In short, the taxi driver not at fault, so in accordance with the principle of fault liability should not be held responsible. Let us imagine some extreme examples, such as being the culprits robbed a taxi, passengers injured, through no fault of the drivers for this result, are under strict liability for the existing contract law, taxi-owned company still be liable for damages? No doubt this theory to the carriers obligation to impose too heavy, and require them to the safety of passengers and the extra force can not be the concern of lack of impartiality. But if the responsibility for wrongs, there is room for maneuver. In other words, the consequences of the carrier and the passengers were not at fault for injury, but such cases are not acts of God, at this moment, there is a fair responsibility for the space to display their fists. 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