风险社会与现代侵权责任法体系

风险社会与现代侵权责任法体系

Risk Society and Basic Structure of Tort Law System

    期刊名称：《法学研究》
    期刊年份：
    作者：朱岩
    单位：中国人民大学法学院
    中文关键词：侵权法体系;风险社会;危险责任;组织责任;过错责任
    英文关键词：tort law system;risk society;endangering liability;organization liability;fault liability
    中文摘要：
    传统侵权法的内在体系建立在自然人过错侵权的基础上，无法满足现代风险社会的需要。从社会主体分化、风险来源、组织分工等社会基础出发，现代侵权法的归责体系应包括过错责任、危险责任和组织责任。其中过错责任日趋衰落，危险责任与组织责任成为风险社会中的重要归责事由。侵权法的外在体系应当反映其内在体系的本质结构，在立法模式上须围绕三元归责事由展开。
    英文摘要：
    The inner system of traditional tort law was based on the fault liability and concentrated primarily on wrongfully intentional harm conducted by a natural person as tortfeasor against another natural person as victim with the compensation result. After the society was gradually entering into a risk one full of new accidents due to industrialization, the inner system of modern tort law has correspondingly changed. Instead of the unitary fault liability, three liability grounds, namely, fault liability, endangering liability (Gefhrdungshaftung) and organization liability make up the liability attribution system in modern tort law. As a result, the external system of tort law should also be set up upon the inner system correspondingly.Endangering liability for traffic accident, abnormally dangerous activities, etc., has an inherent connection with risk society, while organization liability also reflects the basic characteristic of labor division in modern society. It is worth pointing out that the concept of organization liability would be better than the current one of “vicarious liability”. Fault liability is still an important accountability ground, but its significance in today’s risk society has decreased and it is basically applied to the cases happening between natural persons in private life.The relief provided by tortuous liability constitutes only a part of the whole macro indemnification system which is composed of social insurance, commercial insurance, liability insurance and social relief funds. But tort law has its specific functions such as offering incentive instruments to correct wrongful acts, deciding the final liable person, adopting punitive damage and providing non-pecuniary damage. From the experiences provided by comparative tort law, Chinese tort law legislation should adopt the above-mentioned three liability grounds. Particularly, lawmakers should attach important significance to the endangering liability and organization liability. In the framework of fault liability, it is necessary to differentiate the intentional and negligent liability. It is also of great importance to regulate the liabilities due to breach of the duty of care (Sozialsicherungspflicht) and breach of the statutory duty, so that tort law could become more elastic to meet the emerging demands.
    全文阅读：  点击下载