美國(guó)侵權(quán)法中的因果關(guān)系理論
發(fā)布時(shí)間：2019-06-21 02:40
【摘要】： 隨著現(xiàn)代科技的飛速發(fā)展,因果關(guān)系的復(fù)雜性推到了極致,從而大大增加了因果關(guān)系認(rèn)定的難度。按美國(guó)法因果關(guān)系判斷的通說(shuō),采取“兩分法”：事實(shí)上的因果關(guān)系和法律上的因果關(guān)系。事實(shí)上的因果關(guān)系是用于探討被告行為是否實(shí)際上為損害發(fā)生的原因,若沒(méi)有被告的行為,損害是否仍將發(fā)生；而法律上的因果關(guān)系是屬于法律政策的考量,主要是以限制被告責(zé)任來(lái)達(dá)到公平、正義、社會(huì)需求以及法律規(guī)范的目的。 事實(shí)上的因果關(guān)系又稱事實(shí)原因,許多學(xué)者試圖給事實(shí)原因下一個(gè)確切的定義,或者描述它所服務(wù)的侵權(quán)行為法律目的。馬龍和格林是其中最為成功的,他們的學(xué)說(shuō)成為了當(dāng)代美國(guó)侵權(quán)行為法的基礎(chǔ)。格林教授提出“義務(wù)—危險(xiǎn)分析”理論,將廣義的因果關(guān)系被分為兩部分：事實(shí)原因(狹義的因果關(guān)系)和義務(wù)。雖然同為義務(wù)—危險(xiǎn)分析的擁護(hù)者,馬龍不同意格林事實(shí)原因的分析以及他的推論,馬龍認(rèn)為因果關(guān)系并非純粹的事實(shí)問(wèn)題,它需要政策的介入。兩者最大的區(qū)別在于事實(shí)原因是否包括政策因素。筆者認(rèn)為完全將價(jià)值判斷從事實(shí)中剝離出來(lái)是不現(xiàn)實(shí)的,但是格林的分離原因理論是一個(gè)有效的分析工具,有利于實(shí)踐操作。這不是讓實(shí)驗(yàn)者們忽視政策的限制,而是說(shuō)政策和事實(shí)應(yīng)該被分開,事實(shí)上的因果關(guān)系應(yīng)該絕對(duì)地避免政策的介入。 事實(shí)原因的判斷標(biāo)準(zhǔn)包括：第一,“若無(wú),則不”規(guī)則即美國(guó)法上的"but for rule",也稱為必要條件理論。是指“若無(wú)被告的行為(作為或不作為),則損害將不會(huì)發(fā)生,該行為即為損害的原因。反之,若無(wú)被告的行為,損害仍會(huì)發(fā)生,則被告的行為并非損害的原因�！钡诙�,實(shí)質(zhì)因素理論,是指“被告的侵權(quán)行為對(duì)于損害的發(fā)生必須為一項(xiàng)實(shí)質(zhì)因素,如果即使行為人不存在過(guò)失,該傷害也會(huì)發(fā)生,則行為人的過(guò)失行為不是造成他人受傷害的實(shí)質(zhì)因素�！钡谌�,復(fù)合原因理論,也稱為充分條件的必要因素理論。所謂充分條件是指復(fù)合原因互相作用而導(dǎo)致了損害結(jié)果的發(fā)生,但任何一個(gè)原因?qū)τ诮Y(jié)果的發(fā)生僅為可能性。如甲乙共同作用而導(dǎo)致了丙,分開來(lái)看甲可能但不一定引起丙,乙可能但不一定引起丙,但甲乙共同作用則導(dǎo)致了丙這一結(jié)果的產(chǎn)生。第四,市場(chǎng)份額理論,這一理論適用于產(chǎn)品責(zé)任,若原告能證明造成其損害的產(chǎn)品出自某個(gè)制造商時(shí),該制造商即成立侵權(quán)責(zé)任。但如果生產(chǎn)同類產(chǎn)品的制造商過(guò)多導(dǎo)致原告無(wú)法確定特定的制造商時(shí),美國(guó)多數(shù)法院的方法是按照該產(chǎn)品各個(gè)制造商所占市場(chǎng)份額來(lái)確認(rèn)責(zé)任。第五,減少有利機(jī)會(huì)理論,該理論專門適用于醫(yī)療糾紛案件,是實(shí)質(zhì)因素理論的一個(gè)分支。 法律上的因果關(guān)系又稱最近原因,該理論為責(zé)任設(shè)立了邊界。雖然對(duì)其定義仍然眾說(shuō)紛紜,但是對(duì)它的準(zhǔn)確理解至少應(yīng)當(dāng)包含以下內(nèi)容：第一,近因必為事實(shí)原因的一部分,也就是說(shuō)要為近因必須先滿足事實(shí)原因的判斷準(zhǔn)則；第二,近因必包含有價(jià)值判斷,該價(jià)值判斷主要是指對(duì)于美國(guó)侵權(quán)行為法法律政策的考量,并且這一考量貫穿始終,是最根本的內(nèi)容；第三,由法律政策考量而衍化出的近因判斷準(zhǔn)則。 法律政策是指同公共利益和社會(huì)根本問(wèn)題相關(guān),本質(zhì)上反映了社會(huì)或團(tuán)體的總體目標(biāo),目的是使團(tuán)體成員的社會(huì)、經(jīng)濟(jì)或政治福利得以整體提升,即使這樣可能會(huì)導(dǎo)致對(duì)個(gè)人權(quán)利的限制,政策也會(huì)被貫徹。本文從法律責(zé)任的不同根據(jù)；限制責(zé)任的那些因素；訴訟中因果關(guān)系問(wèn)題的表達(dá)程式；對(duì)這樣的事項(xiàng)證明責(zé)任的負(fù)擔(dān)幾個(gè)方面論述政策影響責(zé)任的方法。 最近原因的判斷標(biāo)準(zhǔn)分為：第一,直接結(jié)果規(guī)則,也稱直接原因規(guī)則,包含兩層意思：①行為人只對(duì)直接引起損害結(jié)果的行為負(fù)責(zé),這意味著行為和結(jié)果之間不能有替代因素出現(xiàn)；②只要該行為直接引起損害后果,無(wú)論該結(jié)果是否可以預(yù)見,該行為都是損害結(jié)果發(fā)生地近因。直接結(jié)果規(guī)則現(xiàn)在多用于故意侵權(quán)案件,其他案件中大部分法院在考量因果關(guān)系和確認(rèn)責(zé)任時(shí)還是以可預(yù)見性規(guī)則為標(biāo)準(zhǔn)。第二,可預(yù)見性規(guī)則,指行為人作為有正常智力和謹(jǐn)慎的人應(yīng)當(dāng)合理地預(yù)見到它的過(guò)失行為會(huì)造成對(duì)他人的危險(xiǎn)(無(wú)論是由于事件或類似情況造成),行為人自己相信會(huì)發(fā)生什么或行為人預(yù)見由于他造成的危險(xiǎn)情況會(huì)造成怎樣的損害,則不予考慮,不法行為人不對(duì)只是可能產(chǎn)生的結(jié)果承擔(dān)責(zé)任,而只對(duì)依普通或通常經(jīng)驗(yàn)判斷可能產(chǎn)生的結(jié)果承擔(dān)責(zé)任。本文從可預(yù)見性規(guī)則的內(nèi)容及意義、在審判實(shí)踐中的運(yùn)用、在介入原因中的作用三方面分別論述。 要討論近因就不得不提到遠(yuǎn)因,近因理論相當(dāng)于在眾多事實(shí)原因中對(duì)選出符合其標(biāo)準(zhǔn)的法律原因,也即對(duì)責(zé)任進(jìn)行限制,而遠(yuǎn)因原則則相當(dāng)于在近因原則的基礎(chǔ)上進(jìn)一步限制責(zé)任。遠(yuǎn)因原則的基礎(chǔ)為普通法系的無(wú)過(guò)錯(cuò)即無(wú)責(zé)任原則,其顧名思義即為某一行為相較于那個(gè)“最近的”原因?qū)τ趽p害結(jié)果是間接的、不可預(yù)見的、“遙遠(yuǎn)的”,實(shí)質(zhì)是在近因原則排除的基礎(chǔ)之上,對(duì)于侵權(quán)責(zé)任作出進(jìn)一步的限制,再通過(guò)價(jià)值判斷等方式排除其認(rèn)定為“遙遠(yuǎn)的”聯(lián)系,最終得出最近的法律上的原因。該原則是法律政策在因果關(guān)系理論中的集中體現(xiàn),其對(duì)政策的選擇主要體現(xiàn)在排除獨(dú)立的介入因素(原告所受損害與被告行為之間)、避免對(duì)同一損害進(jìn)行多重賠償、避免過(guò)于大量的訴訟、排除間接經(jīng)濟(jì)損失四方面,另外本文還通過(guò)“不受歡迎的被告”作為實(shí)際案例分析上訴四方面。 最后,本文提出美國(guó)法中因果關(guān)系理論的兩分法、事實(shí)原因和法律原因的判斷標(biāo)準(zhǔn)、遠(yuǎn)因原則對(duì)于法律政策的選擇等對(duì)我國(guó)的借鑒意義。
[Abstract]:With the rapid development of modern science and technology, the complexity of causality has been pushed to the extreme, which greatly increases the difficulty of the causality determination. ""two-way method": the de facto causality and the causal relationship in the law," he said in accordance with the U.S. law. The fact that the causal relationship is used to investigate whether the defendant's behavior is actually the cause of the damage, and if there is no defendant's conduct, the damage will still occur; and the legal causal relationship is the consideration of the legal policy, mainly to limit the defendant's responsibility to achieve fairness and justice, The purpose of the social needs and the legal norms. In fact, the cause of the causal relationship is also known as the fact that many scholars try to give the facts the exact definition, or describe the tort law it serves. The purpose of the law is that Marlon and Green are the most successful, and their doctrine has become a contemporary American tort law. On the basis of Professor Green's theory of "The risk analysis of the obligation", the general causal relationship is divided into two parts: the fact causes (the narrow causal relationship) As an advocate of the risk analysis of the obligation, Marlon does not agree with the analysis of the cause of the fact of Green's facts and his reasoning that the causality is not a purely factual issue and that it needs a policy The greatest difference between the two lies in the fact that the fact is that the cause of the fact is political The author thinks that it is not realistic to judge the value of the value from the fact, but the theory of the separation of Green is an effective analytical tool, which is beneficial to the real This is not to let the experimenter ignore the limits of the policy, but to say that the policies and the facts should be separated, and the de facto causality should definitely avoid the policy The criteria for judging the facts of the fact include: first, if none, then no rule is the "cut for rule" in the United States, and also said As a necessary condition, the theory of the second and the essential factors of the "If there is no defendant's act (act or omission), the damage will not occur and the act is the cause of the damage. On the other hand, if there is no defendant, the damage will still occur, and the defendant's conduct is not the cause of the damage." refers to the third and the compound cause theory of the "The defendant's violation must be a substantial factor in the occurrence of the damage, and if the perpetrator does not have the fault, the injury will also take place, and the fault of the actor is not a substantial factor in the harm of others.", which is also called the sufficient condition The necessary factor theory. The so-called sufficient condition means that the compound causes the occurrence of the damage result, but any one reason is for the result. The occurrence is only the possibility. For example, the common action of the methyl ethyl group leads to the fact that the A and B may, but not necessarily cause, the C, B may, but not necessarily cause, C, but the common action of the methyl ethyl group results in the C. Fourth, market share theory, this theory is applicable to product liability, if the plaintiff can prove that the product that caused the damage is from a manufacturer, the manufacturer The creation of a tort liability. However, if the manufacturer of the same type of similar product causes the plaintiff to be unable to determine the particular manufacturer, the method of most of the courts in the United States is in accordance with the market of the various manufacturers of the product Share to confirm responsibility. Fifth, reduce the theory of favorable opportunity, which is applicable to medical disputes, and is a real factor. A branch of the theory. The causality of the law is also known as the most recent reason. The theory is the responsibility to set up a boundary. Although the definition of the boundary is still numerous, its precise understanding should at least include the following: first, the near-cause must be part of the fact, that is, it is a criterion for judging the fact that the fact must first be met; and secondly, Because of the value judgment, the value judgment mainly refers to the consideration of the law policy of the American tort law, and the consideration is the most fundamental content throughout the time; and thirdly, it is considered by the legal policy The law policy, which is related to the public interest and the fundamental problem of the society, essentially reflects the overall objective of the society or group, and the purpose is to make the social, economic or political well-being of the members of the group be promoted as a whole, even if the social, economic or political welfare of the group is promoted as a whole. This may result in a pair of The restriction of the individual's rights and the policy will also be carried out. This article is based on the different basis of the legal responsibility, the factors which limit the responsibility, the expression of the cause and effect in the litigation, and the burden of the responsibility for such matters. Several aspects of the method of policy influence responsibility are discussed. The criteria for judging the most recent reason are: first, the direct result rule, and the direct cause rule, which includes two layers: the perpetrator only is responsible for the act directly causing the damage result, means that there is no substitute for the act and the result, and as long as the act directly causes the consequences of the damage, whether or not the result is It is foreseen that the act is the near result of the damage result. The direct result rule is now used for intentional tort cases, and most of the other cases are considering the cause and effect The rule of predictability is the standard of the rule of predictability. The second, the rule of predictability, means that the actor, as a person with normal intelligence and care, should reasonably see that the act of the fault would cause the harm to others. (whether due to an incident or a similar situation), the perpetrator himself is confident that what is going to happen or what the perpetrator can foresee as a result of his or her dangerous situation will not be taken into account, and that the wrongdoer is not liable for the consequences that may arise, but only to the Epp The responsibility of the result of a judgment that is likely to be produced. This article, from the content and meaning of the rules of predictability, is in the practice of the trial. The three aspects of the application and the effect of the intervention are discussed separately. The close cause of the discussion has to be mentioned, and the near-cause theory is equivalent to the legal reasons for the selection of the criterion in many facts, namely, the limitation of the responsibility, and far from the other. The principle is equivalent to the further limitation of the liability on the basis of the principle of near-law. The principle is based on the principle of no fault of the common law system, that is, the principle of no responsibility, and its name implies that the result of the damage is indirect and unforeseeable for a certain behavior compared with that of the "most recent". ", in essence, on the basis of the exclusion of the principle of the near-cause, further limitation on the liability of the infringement, and the determination as" trunk>" farway by means of value judgment or the like. " contact, resulting in the most recent legal reasons. The principle is the reflection of the legal policy in the theory of causality, and its choice of policy is mainly reflected in the exclusion of independent intervention factors (between the injury of the plaintiff and the act of the defendant), Avoid multiple compensation for the same damage, avoid excessive litigation, and eliminate the four aspects of indirect economic loss. Ant " is the four aspects of the analysis of the actual case. In the end, this paper puts forward the two-method, the fact and the legal reason for the theory of causality in the American law.
【學(xué)位授予單位】：浙江工商大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D971.2
本文編號(hào)：2503720
[Abstract]:With the rapid development of modern science and technology, the complexity of causality has been pushed to the extreme, which greatly increases the difficulty of the causality determination. ""two-way method": the de facto causality and the causal relationship in the law," he said in accordance with the U.S. law. The fact that the causal relationship is used to investigate whether the defendant's behavior is actually the cause of the damage, and if there is no defendant's conduct, the damage will still occur; and the legal causal relationship is the consideration of the legal policy, mainly to limit the defendant's responsibility to achieve fairness and justice, The purpose of the social needs and the legal norms. In fact, the cause of the causal relationship is also known as the fact that many scholars try to give the facts the exact definition, or describe the tort law it serves. The purpose of the law is that Marlon and Green are the most successful, and their doctrine has become a contemporary American tort law. On the basis of Professor Green's theory of "The risk analysis of the obligation", the general causal relationship is divided into two parts: the fact causes (the narrow causal relationship) As an advocate of the risk analysis of the obligation, Marlon does not agree with the analysis of the cause of the fact of Green's facts and his reasoning that the causality is not a purely factual issue and that it needs a policy The greatest difference between the two lies in the fact that the fact is that the cause of the fact is political The author thinks that it is not realistic to judge the value of the value from the fact, but the theory of the separation of Green is an effective analytical tool, which is beneficial to the real This is not to let the experimenter ignore the limits of the policy, but to say that the policies and the facts should be separated, and the de facto causality should definitely avoid the policy The criteria for judging the facts of the fact include: first, if none, then no rule is the "cut for rule" in the United States, and also said As a necessary condition, the theory of the second and the essential factors of the "If there is no defendant's act (act or omission), the damage will not occur and the act is the cause of the damage. On the other hand, if there is no defendant, the damage will still occur, and the defendant's conduct is not the cause of the damage." refers to the third and the compound cause theory of the "The defendant's violation must be a substantial factor in the occurrence of the damage, and if the perpetrator does not have the fault, the injury will also take place, and the fault of the actor is not a substantial factor in the harm of others.", which is also called the sufficient condition The necessary factor theory. The so-called sufficient condition means that the compound causes the occurrence of the damage result, but any one reason is for the result. The occurrence is only the possibility. For example, the common action of the methyl ethyl group leads to the fact that the A and B may, but not necessarily cause, the C, B may, but not necessarily cause, C, but the common action of the methyl ethyl group results in the C. Fourth, market share theory, this theory is applicable to product liability, if the plaintiff can prove that the product that caused the damage is from a manufacturer, the manufacturer The creation of a tort liability. However, if the manufacturer of the same type of similar product causes the plaintiff to be unable to determine the particular manufacturer, the method of most of the courts in the United States is in accordance with the market of the various manufacturers of the product Share to confirm responsibility. Fifth, reduce the theory of favorable opportunity, which is applicable to medical disputes, and is a real factor. A branch of the theory. The causality of the law is also known as the most recent reason. The theory is the responsibility to set up a boundary. Although the definition of the boundary is still numerous, its precise understanding should at least include the following: first, the near-cause must be part of the fact, that is, it is a criterion for judging the fact that the fact must first be met; and secondly, Because of the value judgment, the value judgment mainly refers to the consideration of the law policy of the American tort law, and the consideration is the most fundamental content throughout the time; and thirdly, it is considered by the legal policy The law policy, which is related to the public interest and the fundamental problem of the society, essentially reflects the overall objective of the society or group, and the purpose is to make the social, economic or political well-being of the members of the group be promoted as a whole, even if the social, economic or political welfare of the group is promoted as a whole. This may result in a pair of The restriction of the individual's rights and the policy will also be carried out. This article is based on the different basis of the legal responsibility, the factors which limit the responsibility, the expression of the cause and effect in the litigation, and the burden of the responsibility for such matters. Several aspects of the method of policy influence responsibility are discussed. The criteria for judging the most recent reason are: first, the direct result rule, and the direct cause rule, which includes two layers: the perpetrator only is responsible for the act directly causing the damage result, means that there is no substitute for the act and the result, and as long as the act directly causes the consequences of the damage, whether or not the result is It is foreseen that the act is the near result of the damage result. The direct result rule is now used for intentional tort cases, and most of the other cases are considering the cause and effect The rule of predictability is the standard of the rule of predictability. The second, the rule of predictability, means that the actor, as a person with normal intelligence and care, should reasonably see that the act of the fault would cause the harm to others. (whether due to an incident or a similar situation), the perpetrator himself is confident that what is going to happen or what the perpetrator can foresee as a result of his or her dangerous situation will not be taken into account, and that the wrongdoer is not liable for the consequences that may arise, but only to the Epp The responsibility of the result of a judgment that is likely to be produced. This article, from the content and meaning of the rules of predictability, is in the practice of the trial. The three aspects of the application and the effect of the intervention are discussed separately. The close cause of the discussion has to be mentioned, and the near-cause theory is equivalent to the legal reasons for the selection of the criterion in many facts, namely, the limitation of the responsibility, and far from the other. The principle is equivalent to the further limitation of the liability on the basis of the principle of near-law. The principle is based on the principle of no fault of the common law system, that is, the principle of no responsibility, and its name implies that the result of the damage is indirect and unforeseeable for a certain behavior compared with that of the "most recent". ", in essence, on the basis of the exclusion of the principle of the near-cause, further limitation on the liability of the infringement, and the determination as" trunk>" farway by means of value judgment or the like. " contact, resulting in the most recent legal reasons. The principle is the reflection of the legal policy in the theory of causality, and its choice of policy is mainly reflected in the exclusion of independent intervention factors (between the injury of the plaintiff and the act of the defendant), Avoid multiple compensation for the same damage, avoid excessive litigation, and eliminate the four aspects of indirect economic loss. Ant " is the four aspects of the analysis of the actual case. In the end, this paper puts forward the two-method, the fact and the legal reason for the theory of causality in the American law.
【學(xué)位授予單位】：浙江工商大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D971.2
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