因果關(guān)系不明侵權(quán)中的比例責任
發(fā)布時間：2018-07-16 16:55
【摘要】：當今社會伴隨科技文化的不斷發(fā)展,因果關(guān)系不明的侵權(quán)存在普遍,加之各種不確定因素的介入,危險行為及其數(shù)量的增加,損害行為和損害后果之間的因果關(guān)系如何,難以認定。因果關(guān)系傳統(tǒng)理論上的全有和全無,僅僅去衡量因果關(guān)系是否存在,而不論因果關(guān)系有無存在的可能性,或可能性大小有多少。本文探討的比例因果關(guān)系問題是討論一定存在的比例問題。全有或者全無的理論與現(xiàn)階段我國民事舉證制度相結(jié)合之后,在解決很多因果關(guān)系不明侵權(quán)中,難以有效解決當事人的訴求。一般情況下,法院無法100%確定被告的侵權(quán)行為是否是原告損害結(jié)果的必要原因(也就是事實原因)。各法院僅僅能夠在可獲得證據(jù)的基礎(chǔ)上,在1%到99%之間估計被告侵權(quán)行為造成原告所受損害的可能性,這種估計往往存在很大差異。但達到要求的證明標準時,法院則判決因果關(guān)系成立并且要求被告為原告的損害承擔責任。由此可見,現(xiàn)階段面臨的問題是,怎樣在因果關(guān)系難以確定的案例中平衡被告及原告的權(quán)益,適當有效的遏制侵權(quán)行為的發(fā)生,保障原告及被告的合法權(quán)益。首先,本文將從比例責任的基本內(nèi)涵入手,說明我國現(xiàn)有的法律對此類侵權(quán)的規(guī)定,從而引出比例責任的研究緣起。說明因果關(guān)系不明侵權(quán)的一般處理規(guī)則和基本界定。分析不同領(lǐng)域比例責任的釋義,說明本文中所研究的比例責任的概念。分析比較比例責任與過錯責任、原因力責任的聯(lián)系和區(qū)別。其次,研究和分析因果關(guān)系不明侵權(quán)中比例責任的合理性和科學性——防止了侵權(quán)人責任過輕,以及防止了侵權(quán)人責任過重。侵權(quán)責任在數(shù)個責任人之間分配時應(yīng)當考慮對受害人利益的保護,侵權(quán)行為人的首要目的是補償受害人的損失。還應(yīng)當考慮到保護責任人的權(quán)益,對受害人損害的賠償不能以犧牲責任人的利益為代價。責任人之間利益的分配應(yīng)當適當合理,所以需要借鑒比例責任,體現(xiàn)侵權(quán)法的公平公正。再次,對英美法系,特別是美國法中比例責任的類型進行概括和案例整理,其中有三大類,每一類還有諸多子類型。結(jié)合案例進行分析比較。第四,確定比例責任適用的前提,理解比例責任適用的目的,以實現(xiàn)侵權(quán)法的價值追求:威懾目的和矯正正義。分析在確定“比例”時所需要斟酌的具體因素:包括以心證的程度決定損害額,依原因影響度決定比例以及以域外立法規(guī)定為例進行研究。同時說明比例責任的分擔依據(jù)。最后,列舉我國法律關(guān)于因果關(guān)系不明的規(guī)定,結(jié)合中國《侵權(quán)責任法》的規(guī)定,學說見解及司法實踐,分析中國引進比例責任的有利基礎(chǔ)。比例責任的引入可以彌補立法欠缺,平衡雙方利益,實現(xiàn)司法公正。再次闡述比例責任在我國的適當引入,比例責任的適用領(lǐng)域,即拓展適用的范圍。
[Abstract]:With the continuous development of science and technology and culture, the infringement of unknown causality is widespread, in addition to the intervention of various uncertain factors, the increase of dangerous behavior and its quantity, and the causality between the damage behavior and the damage consequence. It's hard to determine. In the traditional theory of causality, whether there is causality or not is only measured, regardless of the possibility of causation or not, or the degree of probability. The problem of proportional causality is discussed in this paper. After the combination of the theory of all or nothing and the civil proof system of our country at present, it is difficult to solve the demands of the parties effectively in solving a lot of tort with unknown causality. In general, the court could not determine 100% whether the defendant's tort was a necessary cause of the plaintiff's damage (i.e., factual). The court is only able to estimate the likelihood of the plaintiff's injury caused by the defendant's tort between 1% and 99% on the basis of available evidence, which often varies greatly. But when the required standard of proof was met, the court ruled that causality was established and held the defendant liable for the plaintiff's damage. Thus, the problem is how to balance the rights and interests of the defendant and the plaintiff in the case where the causality is difficult to determine, to restrain the occurrence of the tort, and to protect the legitimate rights and interests of the plaintiff and the defendant. First of all, this article will start with the basic connotation of proportional liability, explain the existing law of our country to this kind of tort provisions, so as to lead to the origin of the study of proportional liability. Explain the causality of unknown infringement of the general treatment rules and the basic definition. This paper analyzes the definition of proportional responsibility in different fields and explains the concept of proportional responsibility studied in this paper. Analyze and compare the relation and difference between proportional liability and fault liability and causative liability. Secondly, it studies and analyzes the rationality and scientificalness of the proportional responsibility in the tort of unknown causality, which prevents the tortfeasor from being too light and the tortfeasor from being too heavy. The protection of the victim's interests should be taken into account when the tort liability is distributed among several responsible persons, and the primary purpose of the tortfeasor is to compensate the victim's loss. Consideration should also be given to the protection of the rights and interests of those responsible, and compensation for damage to victims must not be made at the expense of the interests of those responsible. The distribution of benefits among the responsible persons should be appropriate and reasonable, so it is necessary to draw lessons from the proportional liability to reflect the fairness and fairness of tort law. Thirdly, the types of proportional liability in Anglo-American law system, especially in American law, are summarized and sorted out. There are three categories, each of which has many subtypes. Combined with the case analysis and comparison. Fourthly, the premise of the application of proportional liability should be determined and the purpose of application of proportional liability should be understood in order to realize the value pursuit of tort law: deterrent purpose and corrective justice. This paper analyzes the specific factors that need to be considered in determining the "proportion", including determining the amount of damage by the degree of evidence, determining the proportion according to the degree of influence of cause, and taking the extraterritorial legislation as an example. At the same time, explain the basis of the sharing of proportional responsibility. Finally, the author enumerates the provisions of the law of our country on the unclear causality, combines the provisions of China's Tort liability Law, theoretical opinions and judicial practice, and analyzes the favorable basis for the introduction of proportional liability in China. The introduction of proportional responsibility can make up for the lack of legislation, balance the interests of both sides and realize judicial justice. The appropriate introduction of proportional responsibility in China, the application of proportional liability, that is, to expand the scope of application.
【學位授予單位】：西北師范大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D923
本文編號：2127024
[Abstract]:With the continuous development of science and technology and culture, the infringement of unknown causality is widespread, in addition to the intervention of various uncertain factors, the increase of dangerous behavior and its quantity, and the causality between the damage behavior and the damage consequence. It's hard to determine. In the traditional theory of causality, whether there is causality or not is only measured, regardless of the possibility of causation or not, or the degree of probability. The problem of proportional causality is discussed in this paper. After the combination of the theory of all or nothing and the civil proof system of our country at present, it is difficult to solve the demands of the parties effectively in solving a lot of tort with unknown causality. In general, the court could not determine 100% whether the defendant's tort was a necessary cause of the plaintiff's damage (i.e., factual). The court is only able to estimate the likelihood of the plaintiff's injury caused by the defendant's tort between 1% and 99% on the basis of available evidence, which often varies greatly. But when the required standard of proof was met, the court ruled that causality was established and held the defendant liable for the plaintiff's damage. Thus, the problem is how to balance the rights and interests of the defendant and the plaintiff in the case where the causality is difficult to determine, to restrain the occurrence of the tort, and to protect the legitimate rights and interests of the plaintiff and the defendant. First of all, this article will start with the basic connotation of proportional liability, explain the existing law of our country to this kind of tort provisions, so as to lead to the origin of the study of proportional liability. Explain the causality of unknown infringement of the general treatment rules and the basic definition. This paper analyzes the definition of proportional responsibility in different fields and explains the concept of proportional responsibility studied in this paper. Analyze and compare the relation and difference between proportional liability and fault liability and causative liability. Secondly, it studies and analyzes the rationality and scientificalness of the proportional responsibility in the tort of unknown causality, which prevents the tortfeasor from being too light and the tortfeasor from being too heavy. The protection of the victim's interests should be taken into account when the tort liability is distributed among several responsible persons, and the primary purpose of the tortfeasor is to compensate the victim's loss. Consideration should also be given to the protection of the rights and interests of those responsible, and compensation for damage to victims must not be made at the expense of the interests of those responsible. The distribution of benefits among the responsible persons should be appropriate and reasonable, so it is necessary to draw lessons from the proportional liability to reflect the fairness and fairness of tort law. Thirdly, the types of proportional liability in Anglo-American law system, especially in American law, are summarized and sorted out. There are three categories, each of which has many subtypes. Combined with the case analysis and comparison. Fourthly, the premise of the application of proportional liability should be determined and the purpose of application of proportional liability should be understood in order to realize the value pursuit of tort law: deterrent purpose and corrective justice. This paper analyzes the specific factors that need to be considered in determining the "proportion", including determining the amount of damage by the degree of evidence, determining the proportion according to the degree of influence of cause, and taking the extraterritorial legislation as an example. At the same time, explain the basis of the sharing of proportional responsibility. Finally, the author enumerates the provisions of the law of our country on the unclear causality, combines the provisions of China's Tort liability Law, theoretical opinions and judicial practice, and analyzes the favorable basis for the introduction of proportional liability in China. The introduction of proportional responsibility can make up for the lack of legislation, balance the interests of both sides and realize judicial justice. The appropriate introduction of proportional responsibility in China, the application of proportional liability, that is, to expand the scope of application.
【學位授予單位】：西北師范大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D923
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