法律责任概念的形式构造
余军,朱新力法律责任概念的形式构造
Formal Structure of the Concept of Legal Liability
期刊名称：《法学研究》
期刊年份：
作者：余军,朱新力
单位：华南理工大学法学院;;浙江大学光华法学院
中文关键词：法律责任;不法行为;救济权法律关系
英文关键词：legal liability;delict;redress relationship
中文摘要：
凯尔森的法律责任概念体现为不法行为与其所引起的规范效果之间的充分且必要条件关系。运用霍菲尔德的基本法律关系分析框架，这一法律责任概念的形式构造可以转换为不法行为是“狭义权利-狭义义务”或“特权-无权利”救济权法律关系的充分必要条件。这个分析结论可为法律责任机制的正当性提供规范意义上的解说，还可用于澄清学界在行政法、侵权法、国家赔偿法等领域对于法律责任、不法行为的诸多错误认识，从而在各种具体情形中捍卫作为规范性概念的法律责任的精确性与纯粹性。
英文摘要：
From the viewpoint of legal phenomenon, an ideal legal normative concept includes three levels, that is, its value element (due content), its normative element (validity) and its fact element (social effect). Thus the foundation of liability (imputation), the redress relationship and the compulsion by public power embody the three elements of legal liability as a normative concept. The essence of legal liability is the specified redress relationship due to the specified legal fact which infringes right or interest. Therefore the comprehension of legal liability should centers attention on its redress relationship.In Hans Kelsen’s theory, delict is a sufficient and necessary condition of its normative effect (ought to be sanctioned). That is, the result of sanction can be inferred from delict, and delict can also be inferred from sanction. When analyzed from the view of legal relationship, such formal structure of legal liability can change its expression into the redress relationship, thus the normative effect of sanction due to delict can be expressed as the specific redress relationship. In the four categories of redress relationship, the relationship between right and duty and the relationship between privilege and no right as in summary compulsion not only contain the content of sanction, but also can be realized by actual compulsion. These two categories of redress relationship can be the normative element of legal liability. The relationship between right and duty exists widely in civil law, administrative law and criminal law, and is the most common and universal form, while the relationship between privilege and no right exists only in summary compulsion, thus only a special form of the normative element of legal liability. The analysis of this article deepens Hans Kelsen’s legal liability theory in the analytical frame of basic legal relationship, and may provide a kind of explanation for the legitimacy of legal liability mechanism and safeguard effectively the purity and veracity of legal liability as a normative concept.
全文阅读： 点击下载
