A model essay on proxy words in the case of joint drinking death

Taking the death of * * due to drinking as an example, the writing of surrogate words has a prescribed format. You can refer to the following model essay. Let me give you a detailed introduction about the proxy words of * * * and the legal knowledge of drinking death cases.

* * * Model essay on drinking to death in the same case

Dear presiding judge and judge,

Entrusted by the plaintiff in this case, I participated in the trial of this case. Now, based on the facts of the case and relevant laws and regulations, I put forward the following agency opinions for your reference and hope to adopt them.

A, the defendant and others as * * * drinkers, toast and vomiting-inducing toasts.

According to the transcript made by * in the public security organ? The three of them are looking for each other to drink. You respect me, and I respect you? ,? It was drunk in a white porcelain bowl, not less than a catty of wine. I felt he was drunk when I left? . It can also be seen from other people's investigation records that at noon on the day of the crime, the victim and the defendant in this case drank two bottles of white wine and asked for two more bottles. Although the exact amount of alcohol consumed is unknown, according to the autopsy report of the victim, the alcohol content in his blood is as high as 329.5mg/ 100ml.

Because the victim is not alive, it is impossible to confront and restore the truth, but the alcohol content detected in the victim's autopsy report and the description of the person involved can infer the victim's drinking amount. To take a step back, even if the defendant didn't persuade him to drink, it can only show that the defendant had no direct intention to get drunk with the victim subjectively, but it can't deny the indirect intention, let alone the fact that the victim's drunkenness was caused by the defendant and his drinking behavior.

2. The defendants failed to fulfill their obligation to remind and dissuade the victims during drinking.

In this case, the defendant has friends and relatives of the victim. During the meal, they can clearly feel the victim's drinking state. When the victim drinks too much, he should promptly remind and dissuade the victim that enough is enough. However, in this case, the defendant failed to fulfill the above obligations, and there was a certain fault, which made him unshirkable responsible for the victim's drunkenness.

3. The defendant failed to fulfill his security obligations within reasonable limits.

(1) The hotel failed to fulfill its security obligations.

First of all, it is illegal for a hotel to have no industrial and commercial registration and no health and fire-fighting licenses to operate the hotel. At the same time, according to the record of the hotel staff, the stairs in the hotel are too narrow, which does not meet the safety standards at all. When saving the victim, even the back is not smooth. In other words, the victim is no longer alive, and it is unknown how the bump on the victim's head recorded in the autopsy report was caused.

However, it does not rule out that the defendant in this case bumped into the victim because he did not fulfill the necessary duty of care. Secondly, the hotel still sells liquor to customers while knowing that they are drunk, and indulges in drinking, without considering the customers and failing to fulfill their due duty of care. In addition, as a hotel staff, according to *, Zhou poured wine and water for the victim during the whole drinking process, which also aggravated the victim's drunkenness.

In short, the hotel is operating illegally and has not established the necessary security measures. As the operator of the hotel, the defendant in this case should pay attention to the death of the victim according to the first paragraph of Article 37 of the Tort Liability Law of People's Republic of China (PRC). Managers of hotels, shopping malls, banks, railway stations, entertainment places and other public places, or organizers of mass activities, who fail to fulfill their security obligations and cause damage to others, shall bear tort liability? Provisions of responsibility.

(2) As the defendant who dined together, he failed to fulfill the obligation of safe escort after the victim was drunk.

When the victim was drunk, the defendants left one after another without taking necessary safety protection measures and failed to fulfill the obligation of safety escort. However, due to his previous drinking and other behaviors, he did not avoid the above obligations and objectively did not prevent the death of the victim. Subjectively, there is a fault in the sense of civil law. Should bear the corresponding civil liability.

Four, the defendant neglected to rescue, causing the victim to delay the treatment time and die.

In this case, according to the defendant's confession in the public security organ, the defendant, as the hotel operator, found that the victim's lips were purple, foaming at the mouth, and there were signs of life-threatening. Instead of calling the emergency number, he called *. After the defendant arrived, he still didn't call the emergency number, but carried the victim out and sent him to the traffic hospital with poor medical conditions by private car without any treatment equipment. The victim was sent to the county hospital without treatment in the traffic hospital. These facts can also be confirmed from the transcripts made by other defendants in public security organs.

And the defendant has no evidence to show that he has fulfilled his timely and correct rescue obligation. The agent believes that it should be in accordance with the provisions of the second paragraph of Article 6 of the Tort Liability Law of People's Republic of China (PRC). If the actor is presumed to be at fault according to the law, and the actor cannot prove that he is not at fault, he shall bear tort liability? Provisions that the defendant shall be investigated for civil liability.

To sum up, what was the cause of death of the victim in this case? Did you die of arachnoid hemorrhage due to bumping in a drunken state without timely treatment? . Although the defendants in this case did not have the same intention, their actions were all aimed at the same infringement target, resulting in the same damage result. Everyone's behavior is caused by the same reason, and the damage result is inseparable, which belongs to objective infringement and should be jointly and severally liable.

Therefore, the agent suggested that in accordance with the provisions of Article 8 of the Tort Liability Law of People's Republic of China (PRC), if two or more persons jointly commit tort and cause damage to others, they shall be jointly and severally liable. ? Provisions on the defendant's liability in this case.

Please adopt the above suggestions.

Agent: XXX

20XX/X/X

* * * Fan Wener who died of drinking in the same case.

Liu x's agent

The presiding judge and judge:

Entrusted by the appellant in this case, I was appointed as the second instance agent of the appellant by xx Law Firm. The agent thinks that the court of first instance found the facts unclear and applied the law wrongly, and the appellant should not be liable for compensation. Therefore, the following opinions are hereby issued:

1. Liu Xx is not at fault and should not be liable for compensation.

Civil liability is based on the existence of civil obligations. * * * Whether the co-drinkers bear the responsibility depends on whether they have the obligations of attention, caution and attention. In the process of drinking, and whether they have the obligation to prevent danger in civil law, that is, whether the * * * co-drinkers should bear the obligation of safety protection.

Citizens' legal responsibilities and legal obligations cannot be generalized and conflict with normal social communication activities. Banqueting and drinking is a normal social activity. You can't bear legal obligations just because you invite others to drink or drink together, but you can bear legal responsibilities. Only because drinking with others causes specific dangers, other drinkers have specific obligations, otherwise there is no legal relationship between them.

In this case, xx invited xx to a banquet for the purpose of gathering and drinking. As an invitee, others should not and cannot stop others from drinking. This is normal social interaction.

As an inviter, the appellant has nothing to do with Li xx. His obligation in the process of drinking should be not to mix with others, not to persuade and drink maliciously, and to do his duty of attention and notification within his own scope. Although Li xx came to dinner by car, Li xx promised not to leave after dinner, so the appellant drank with him. There is nothing wrong with drinking. In the process of drinking, the appellant did not fight with Li xx to persuade him to drink or drink maliciously. How much wine can be drunk is the result of Li xx's own decision, so the appellant has fulfilled his duty of care in the process of drinking. After drinking, Li xx said he had something to leave. In the case of Tang Yonggui and others trying to keep him, Tang Yonggui said to find someone to send Li xx, and Li xx refused. From this point of view, although Li xx drank, he did not drink too much (everyone has different tolerance for wine) and was not in a coma. He can still protect himself. As people with full capacity for civil conduct, they should know the consequences of their actions, and Tang Yonggui and others have fulfilled their duty of care. In fact, what does this duty of care apply to? Obligation of previous behavior? Theory. Fellow drinkers must carry out the first behavior, that is, treat guests, persuade wine, spell wine and other behaviors to induce Li xx to drink too much, which will lead to the duty of care in the future. That is to say, drinking too much wine can't be said to be at fault, but the problem is that * * * implemented the act of drinking too much wine beforehand, which will produce a protection obligation in the future. The appellant didn't participate in xxx's drinking too much (judging from the situation when drinking), and others performed their due diligence obligation to dissuade Li xx after dinner. Li xx drove away despite everyone's dissuasion, which was beyond the control of the appellant and others. Therefore, the appellant is not at fault and should not be liable for compensation.

Here, the agent wants to emphasize that the court of first instance did not deny the above-mentioned views of the agent. When determining that xx and xx are not responsible, they think that although they are drinkers at the same table, they are not at fault for the traffic accident caused by the victim's drunk driving. However, drunk driving is prohibited by law. Jun Guo and Xia Yongsheng also participated in the drinking process. They are both drinkers. We shouldn't judge whether they are wrong by how much wine they drank when they left. According to the judgment standard of the court of first instance, Jun Guo and Xia Yongsheng were also at fault, because they also drank with Li xx, so they should be responsible for Li xx's driving afterwards.

Second, the principle of joint and several liability compensation is not applicable to this case.

Joint liability must be expressly stipulated by law or agreed by the parties. According to the provisions of Article 8 of the Tort Liability Law, if two or more persons jointly commit tort and cause damage to others, they shall be jointly and severally liable. It can be seen that the basis of joint and several liability must be the same as the implementation of tort. In the case of Li xx's death in a traffic accident, none of the defendants in the original trial were infringers, and they should not be held liable, let alone jointly and severally liable. Because this case is a liability problem caused by the duty of care after drinking first, not a direct joint injury. In the absence of joint liability stipulated by law, the court of first instance ordered the appellant and others to bear joint liability for compensation, which has neither factual basis nor legal basis.

3. The compensation ratio determined by the court of first instance is unfair.

The court of first instance ruled that the case was liable for compensation, even so, the proportion of compensation determined was not appropriate.

As a person with full capacity for civil conduct, Li xx should be fully aware of the consequences of his drinking and should bear the main responsibility. However, the behavior of drinkers promotes the occurrence of harmful consequences, and they should bear secondary responsibilities, and the total proportion of their responsibilities should not exceed 30%. Before drinking, Li xx promised to play cards after drinking, but when he wanted to drive away because of something, he insisted on driving himself despite others' discouragement. Li xx is well aware of the illegality of drunk driving, and he should have a duty of care instead of imposing this duty on others, especially farmers like Liu Zhanjiang who don't know how to drive. Therefore, it is suggested that the proportion of drinkers should not exceed 20%. In this case, it is determined that the total loss caused by Li xx's death is 330,675.5 yuan, of which 20% is 66 1.35 yuan. This paragraph should be determined according to the degree of duty of care of guests, drinkers and other fellow drinkers, and the corresponding proportion of responsibility should not apply to the case of compensation.

Four, this case should apply the principle of compensation.

Looking at the objective facts of this case, the traffic accident caused Li xx's death, which was caused by many factors. The rupture of pulmonary artery caused by traffic accident is the direct and main cause of his death, and drinking is the indirect and secondary cause of his harmful consequences. Since Li xx did not die of alcoholism after drinking, other drinkers were not at fault for the consequences of Li xx's death. According to the general tort liability principle, the liability for compensation does not apply to this case. But after all, drinking is one of the reasons for this result, and it is in line with the principle of fair liability in the general principles of civil law that the same drinker gives appropriate compensation to the plaintiff in the original trial according to their respective duty of care when drinking. The agent thinks this is the way to solve the case.

Authorized Agent: xxx Law Firm.

xx

20xx 65438+ October 10

Agreed security obligations

The purpose of the security obligation is to avoid the personal and property damage of others, so the security obligation can also be defined as the obligation to avoid the damage of others. ? Generally speaking, the obligation to avoid harm is usually based on the closest relationship between the offender and the victim or hazard source. Both will lead to responsibility, and responsibility will lead to the obligation to intervene. Parents must protect the harm caused by self-harm. This is the first typical case. Similar safety (guarantee) obligations also arise from those individuals or organizations who voluntarily assume responsibility for others, including those who assume responsibility without contract. ?

Although in theory, some security obligations can be interpreted as incidental obligations in the contract law, from the perspective of China's legislative practice, laws and administrative regulations stipulate a large number of security obligations undertaken by operators under various specific circumstances, but the contract law does not (and cannot) make clear enumeration provisions on this. Therefore, in principle, it is more appropriate to determine the safety and security obligations of Chinese operators as legal obligations, which is in line with the model established by China's current laws and regulations.

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