缺陷產(chǎn)品自身損害的救濟(jì)路徑研究
發(fā)布時間：2018-08-03 10:58
【摘要】：《侵權(quán)責(zé)任法》頒布以來,缺陷產(chǎn)品自身損害的救濟(jì)方式一直爭議不斷:一方面,由于《侵權(quán)責(zé)任法》與《產(chǎn)品質(zhì)量法》規(guī)定上的出入,引發(fā)我國司法實踐和理論界的混亂;另一方面,比較法上中對純粹經(jīng)濟(jì)損失排除規(guī)則的反思與消費者保護(hù)的的進(jìn)一步強(qiáng)化,引發(fā)大陸與英美法系各主要國家理論與實務(wù)上對傳統(tǒng)民法缺陷產(chǎn)品自身損害救濟(jì)模式的質(zhì)疑與革新。對缺陷產(chǎn)品自身損害,學(xué)者們提出了侵權(quán)與違約兩種救濟(jì)模式。前者通過擴(kuò)大侵權(quán)法產(chǎn)品責(zé)任的保護(hù)范圍,將產(chǎn)品自身損害納入到侵權(quán)責(zé)任的射程范圍內(nèi);而后者則是運用“可轉(zhuǎn)移的瑕疵擔(dān)保責(zé)任”、“明示、默示擔(dān)保責(zé)任”等理論工具,通過降低合同相對性的要求,允許消費者直接向生產(chǎn)者主張責(zé)任。結(jié)合我國理論與司法實踐,宜采產(chǎn)品責(zé)任救濟(jì)之模式。在采用擴(kuò)張《侵權(quán)責(zé)任法》第41條一般產(chǎn)品責(zé)任損害范圍的方式時,并非將所有的“產(chǎn)品自身損害”均納入產(chǎn)品責(zé)任的保護(hù)范圍,而應(yīng)當(dāng)以“缺陷”為標(biāo)準(zhǔn),合理區(qū)分契約法與侵權(quán)法。同時,在賠償損失的范圍上,筆者認(rèn)為,并非所有的缺陷產(chǎn)品自身損害均可獲賠,只有生產(chǎn)者合理遇見范圍內(nèi)的,且屬于消費者私人使用造成的損害,方可獲賠。本文分為四章對該問題進(jìn)行研究:第一章缺陷產(chǎn)品自身損害概述。本章首先對缺陷產(chǎn)品自身損害的范圍進(jìn)行了必要的界定,并對產(chǎn)品自身損害與產(chǎn)品缺陷造成的其他損害進(jìn)行了區(qū)分。其次,對傳統(tǒng)民法中對純粹經(jīng)濟(jì)損失排除規(guī)則的理論基礎(chǔ)進(jìn)行了必要的整理,并對包含產(chǎn)品自身損害在內(nèi)的純粹經(jīng)濟(jì)損失侵權(quán)法排除保護(hù)規(guī)則從理論和現(xiàn)實兩方面進(jìn)行了反思,并對各國法律中對純粹經(jīng)濟(jì)損失排除規(guī)則修正的實踐進(jìn)行了梳理。結(jié)合我國司法實際,結(jié)果無非兩種:一是運用傳統(tǒng)民法的思路,只允許消費者向合同相對方主張違約責(zé)任。二是采用產(chǎn)品責(zé)任之一般規(guī)定,將產(chǎn)品自損納入到產(chǎn)品責(zé)任的保護(hù)范圍內(nèi)。從數(shù)量上來看,后者已儼然成為我國的通說。第二章學(xué)說中救濟(jì)路徑的考察。本章分別對比較法中缺陷產(chǎn)品自身損害的救濟(jì)路徑進(jìn)行了梳理�？傮w上來看,改革主要可以區(qū)分為運用侵權(quán)法救濟(jì)路徑與運用契約法的救濟(jì)路徑。首先,在大陸法系,德國司法實務(wù)主張通過“繼續(xù)侵蝕性損害”理論,將產(chǎn)品自損納入到德國民法823條一般侵權(quán)行為的救濟(jì)范圍中,并通過判例予以確認(rèn)。而法國法則通過“可轉(zhuǎn)移的瑕疵擔(dān)保責(zé)任”理論,允許消費者直接向生產(chǎn)商主張物之瑕疵擔(dān)保責(zé)任。而日本法中則傾向于“折中說”,即在固有利益與產(chǎn)品自身均存在損害時方運用侵權(quán)法予以救濟(jì)。而在我國臺灣地區(qū)法律中,稍早作出的判例雖仍然堅守傳統(tǒng)學(xué)說的觀點,但近來也有部分判決認(rèn)為產(chǎn)品自身損害屬于商品責(zé)任。其次,在英美法中,大部分法院傾向于運用產(chǎn)品的“默示、明示擔(dān)保責(zé)任”予以解決,認(rèn)為消費者可以直接向生產(chǎn)者主張這一責(zé)任,并在美國《統(tǒng)一商法典》、第三次《侵權(quán)法重述:產(chǎn)品責(zé)任》中予以確認(rèn)。當(dāng)然,有少數(shù)法院仍舊運用侵權(quán)行為法對產(chǎn)品自損予以救濟(jì)。最后,基于比較法上的做法,我國學(xué)者相應(yīng)地分別提出了運用侵權(quán)法保護(hù)的“肯定說”與運用合同法救濟(jì)的“否定說”。前者獲得了絕大多數(shù)學(xué)者和司法實務(wù)界人士的認(rèn)同。第三章缺陷產(chǎn)品自身損害侵權(quán)法救濟(jì)的理論基礎(chǔ)。本章首先基于前兩章的內(nèi)容,對學(xué)說中存在的救濟(jì)路徑進(jìn)行了反思,認(rèn)為運用侵權(quán)責(zé)任法進(jìn)行救濟(jì)更為合適。其次,通過研究,認(rèn)為運用《侵權(quán)責(zé)任法》41條產(chǎn)品責(zé)任之規(guī)定進(jìn)行救濟(jì),存在著些許問題,特別是在處理其與《產(chǎn)品質(zhì)量法》相關(guān)規(guī)定之間的關(guān)系以及是否會導(dǎo)致經(jīng)營者責(zé)任過重的問題。文章對這一系列問題進(jìn)行了分析,認(rèn)為上述問題并不能夠成為產(chǎn)品責(zé)任救濟(jì)產(chǎn)品自身損害的障礙。最后,文章并不同意“折中說”的觀點,認(rèn)為折中說會造成“產(chǎn)品自身損害”概念不清,且造成體系混亂,不易定位。文章主張運用“缺陷”的概念來限制產(chǎn)品自損侵權(quán)法救濟(jì)的范圍,非因缺陷造成的產(chǎn)品自身損害則運用合同責(zé)任進(jìn)行救濟(jì),并認(rèn)為缺陷是導(dǎo)致的損害是對產(chǎn)品“物之完整性”的侵害,并闡述了運用“缺陷”作為限制的原因。第四章缺陷產(chǎn)品自身損害救濟(jì)路徑的具體構(gòu)建。本章即以《侵權(quán)責(zé)任法》第41條之規(guī)定為基礎(chǔ),分析了產(chǎn)品自身損害侵權(quán)法保護(hù)的構(gòu)成要件。其中,請求、義務(wù)主體、產(chǎn)品缺陷、損害與因果關(guān)系這五大要素是構(gòu)成這一請求權(quán)的不可或缺的要件。其次,在此基礎(chǔ)之上,結(jié)合本法第15條的規(guī)定,導(dǎo)出生產(chǎn)者、銷售者對損失具有損害賠償?shù)牧x務(wù)。但對于產(chǎn)品缺陷造成的產(chǎn)品自身損害并非能夠全部獲得賠償,應(yīng)當(dāng)根據(jù)生產(chǎn)者的可預(yù)見性,在“消費者”正常適用范圍內(nèi)的損失加以賠償。而對于因轉(zhuǎn)賣、盈利等營業(yè)造成的損失,因不具有可預(yù)見性,應(yīng)當(dāng)排除侵權(quán)法救濟(jì)的范疇之外。綜上所述,全文以缺陷產(chǎn)品自身損害的救濟(jì)路徑為索引,通過對純粹經(jīng)濟(jì)損失排除規(guī)則的反思以及對各國的立法、司法實務(wù)中對傳統(tǒng)民法的變革進(jìn)行了梳理,同時結(jié)合我國立法、司法實踐,認(rèn)為運用《侵權(quán)責(zé)任法》第41條之規(guī)定,救濟(jì)產(chǎn)品自身損害,并通過“產(chǎn)品缺陷”進(jìn)行限制。不僅能有效的保護(hù)消費者,還能夠平衡經(jīng)銷商和消費者之間各方利益,是比較適宜的救濟(jì)思路。期能通過文章的梳理和撰寫,形成比較適應(yīng)我國的缺陷產(chǎn)品自身損害的救濟(jì)路徑。
[Abstract]:Since the promulgation of the tort liability law, the remedies of the defective products have been disputed continuously: on the one hand, the discrepancies in the judicial practice and the theoretical circles in our country are caused by the discrepancy between the law of tort liability and the provisions of the product quality law; on the other hand, the Reflection on the exclusionary rule of pure economic loss and the protection of consumers in the comparative law are on the other hand. Further strengthening, triggering the theory and practice of the major countries of the continental and Anglo American legal system to question and innovate the self damage relief mode of the defective products of the traditional civil law. To the defective product itself, the scholars have put forward two kinds of relief modes of tort and breach of contract. The former is the product itself by expanding the scope of the protection of the product liability of the empowered law. The damage is included in the range of the range of the tort liability, and the latter is the use of "transferable warranty liability", "express, implied warranty liability" and other theoretical tools, by reducing the requirements of the contract relativity, allowing consumers to claim responsibility directly to the producers. When adopting the way of expansion of the tort liability law, forty-first general product liability damages, not all "product damage" should be included in the scope of protection of the product liability, and the contract law and tort law should be reasonably distinguished from the "defect". At the same time, in the scope of compensation loss, the author thinks that not all The defective products can be compensable for their own damage. Only the producers' reasonable scope, and the damage caused by the consumer's private use, can be compensated. This article is divided into four chapters to study the problem: Chapter 1 the summary of the self damage of defective products. The product self damage is distinguished from other damage caused by product defects. Secondly, the theoretical basis of the rule of exclusive economic loss exclusionary rule in the traditional civil law is sorted out, and the two aspects of the exclusionary rules of the pure economic loss tort law, including the damage of the product itself, are reconsidered from the theoretical and practical aspects. The practice of revising the exclusionary rule of pure economic loss in the law of various countries is combed. There are two kinds of results in our country's judicial practice: one is to use traditional civil law and only allow consumers to claim liability for breach of contract. Two is the general provision of product liability, and the product self loss is included in the warranty of product liability. In terms of the scope of protection. From the number of the latter, the latter has become the general theory of our country. The remedies of the relief path in the second chapter are reviewed. In this chapter, the remedy path of the defects of the defective products in the comparative law is sorted. In general, the reform is mainly divided into the remedy path of the tort law and the remedy path of the use of the contract law. First, in the continental law system, the German judicial practice advocated that the product self loss was incorporated into the 823 general torts of German civil law through the "continuing erosive damage" theory, and was confirmed by a case. The French law allows consumers to claim directly to the producers through the "transferable liability for defects guarantee". In the law of Taiwan, in the law of China, although the precedents made earlier in the law of our country persist in the view of the traditional theory, there is a partial judgment that the damage of the product itself belongs to the business in recent years. Secondly, in the Anglo American law, most courts tend to use the "implied, implied warranty" of the product to solve it. It is believed that the consumer can claim the responsibility directly to the producer and affirm in the United States "the unified Commercial Code > the third" restatement of the tort law: the responsibility of the product. The behavior law remedies the self damage of the product. Finally, based on the method of comparative law, Chinese scholars have put forward the "affirmative theory" with the use of the tort law and the "negative theory" of the remedy of the use of the contract law respectively. The former obtains the identity of the overwhelming majority of scholars and the judicial practice circles. The third chapter of the defective product itself damages the tort law. In this chapter, based on the content of the first two chapters, this chapter rethinks the remedy path of the doctrine, and thinks that it is more appropriate to use the tort liability law for relief. Secondly, through the study, it is believed that there are some problems in the use of the provisions of ">41 product liability" in the tort liability law, especially in dealing with its and "production". The relationship between quality law and relevant regulations and the question of whether the operator is too heavy. The article analyzes this series of questions and thinks that the above problem can not be an obstacle to the product's self damage. Finally, the article does not agree with the "compromise" view, and thinks that the compromise said that the compromise will cause "production". The article asserts that the concept of "defect" is used to limit the scope of the remedy of the product self damage tort law, and the product self damage caused by the defect is remedied by the contract liability, and the defect is the damage to the product "property integrity". In this chapter, based on the forty-first provisions of the tort liability law, this chapter analyzes the components of the protection of the tort law of the product itself, which is based on the provisions of the forty-first provisions of the tort liability law. In this chapter, the request, the main body of the justice, the defect of the product, the damage to the causality and the causality are the five main parts of the fourth chapter. The element is an indispensable element of the claim. Secondly, on this basis, combining the provisions of the fifteenth article of this law, the producer and seller have the obligation to compensate for damages. However, the damage to the products caused by the product defects is not completely indemnification, and should be "eliminated" according to the predictability of the producer. The loss in the scope of the normal application is compensated. For the loss caused by resale, profit and other business, the scope of the remedy of tort law should be excluded because of the unforeseeable nature of the loss. In summary, the full text is indexed by the remedy path of the defective product itself, and through Reflection on the exclusionary rule of pure economic loss and the right The legislation and judicial practice of various countries have combed the reform of the traditional civil law. At the same time, combining with the legislation and judicial practice of our country, it is believed that the forty-first provisions of the tort liability law are used to relieve the damage of the product itself and to restrict the product through the "product defect". It can not only protect the consumers effectively, but also balance the dealers and the consumers. The interests of all parties are the more appropriate remedial ideas. It is hoped that through the collation and writing of the article, a remedial path more suitable for China's defective products'own damage can be formed.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D923
本文編號：2161534
[Abstract]:Since the promulgation of the tort liability law, the remedies of the defective products have been disputed continuously: on the one hand, the discrepancies in the judicial practice and the theoretical circles in our country are caused by the discrepancy between the law of tort liability and the provisions of the product quality law; on the other hand, the Reflection on the exclusionary rule of pure economic loss and the protection of consumers in the comparative law are on the other hand. Further strengthening, triggering the theory and practice of the major countries of the continental and Anglo American legal system to question and innovate the self damage relief mode of the defective products of the traditional civil law. To the defective product itself, the scholars have put forward two kinds of relief modes of tort and breach of contract. The former is the product itself by expanding the scope of the protection of the product liability of the empowered law. The damage is included in the range of the range of the tort liability, and the latter is the use of "transferable warranty liability", "express, implied warranty liability" and other theoretical tools, by reducing the requirements of the contract relativity, allowing consumers to claim responsibility directly to the producers. When adopting the way of expansion of the tort liability law, forty-first general product liability damages, not all "product damage" should be included in the scope of protection of the product liability, and the contract law and tort law should be reasonably distinguished from the "defect". At the same time, in the scope of compensation loss, the author thinks that not all The defective products can be compensable for their own damage. Only the producers' reasonable scope, and the damage caused by the consumer's private use, can be compensated. This article is divided into four chapters to study the problem: Chapter 1 the summary of the self damage of defective products. The product self damage is distinguished from other damage caused by product defects. Secondly, the theoretical basis of the rule of exclusive economic loss exclusionary rule in the traditional civil law is sorted out, and the two aspects of the exclusionary rules of the pure economic loss tort law, including the damage of the product itself, are reconsidered from the theoretical and practical aspects. The practice of revising the exclusionary rule of pure economic loss in the law of various countries is combed. There are two kinds of results in our country's judicial practice: one is to use traditional civil law and only allow consumers to claim liability for breach of contract. Two is the general provision of product liability, and the product self loss is included in the warranty of product liability. In terms of the scope of protection. From the number of the latter, the latter has become the general theory of our country. The remedies of the relief path in the second chapter are reviewed. In this chapter, the remedy path of the defects of the defective products in the comparative law is sorted. In general, the reform is mainly divided into the remedy path of the tort law and the remedy path of the use of the contract law. First, in the continental law system, the German judicial practice advocated that the product self loss was incorporated into the 823 general torts of German civil law through the "continuing erosive damage" theory, and was confirmed by a case. The French law allows consumers to claim directly to the producers through the "transferable liability for defects guarantee". In the law of Taiwan, in the law of China, although the precedents made earlier in the law of our country persist in the view of the traditional theory, there is a partial judgment that the damage of the product itself belongs to the business in recent years. Secondly, in the Anglo American law, most courts tend to use the "implied, implied warranty" of the product to solve it. It is believed that the consumer can claim the responsibility directly to the producer and affirm in the United States "the unified Commercial Code > the third" restatement of the tort law: the responsibility of the product. The behavior law remedies the self damage of the product. Finally, based on the method of comparative law, Chinese scholars have put forward the "affirmative theory" with the use of the tort law and the "negative theory" of the remedy of the use of the contract law respectively. The former obtains the identity of the overwhelming majority of scholars and the judicial practice circles. The third chapter of the defective product itself damages the tort law. In this chapter, based on the content of the first two chapters, this chapter rethinks the remedy path of the doctrine, and thinks that it is more appropriate to use the tort liability law for relief. Secondly, through the study, it is believed that there are some problems in the use of the provisions of ">41 product liability" in the tort liability law, especially in dealing with its and "production". The relationship between quality law and relevant regulations and the question of whether the operator is too heavy. The article analyzes this series of questions and thinks that the above problem can not be an obstacle to the product's self damage. Finally, the article does not agree with the "compromise" view, and thinks that the compromise said that the compromise will cause "production". The article asserts that the concept of "defect" is used to limit the scope of the remedy of the product self damage tort law, and the product self damage caused by the defect is remedied by the contract liability, and the defect is the damage to the product "property integrity". In this chapter, based on the forty-first provisions of the tort liability law, this chapter analyzes the components of the protection of the tort law of the product itself, which is based on the provisions of the forty-first provisions of the tort liability law. In this chapter, the request, the main body of the justice, the defect of the product, the damage to the causality and the causality are the five main parts of the fourth chapter. The element is an indispensable element of the claim. Secondly, on this basis, combining the provisions of the fifteenth article of this law, the producer and seller have the obligation to compensate for damages. However, the damage to the products caused by the product defects is not completely indemnification, and should be "eliminated" according to the predictability of the producer. The loss in the scope of the normal application is compensated. For the loss caused by resale, profit and other business, the scope of the remedy of tort law should be excluded because of the unforeseeable nature of the loss. In summary, the full text is indexed by the remedy path of the defective product itself, and through Reflection on the exclusionary rule of pure economic loss and the right The legislation and judicial practice of various countries have combed the reform of the traditional civil law. At the same time, combining with the legislation and judicial practice of our country, it is believed that the forty-first provisions of the tort liability law are used to relieve the damage of the product itself and to restrict the product through the "product defect". It can not only protect the consumers effectively, but also balance the dealers and the consumers. The interests of all parties are the more appropriate remedial ideas. It is hoped that through the collation and writing of the article, a remedial path more suitable for China's defective products'own damage can be formed.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D923
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