损害赔偿与民事责任
李承亮损害赔偿与民事责任
Damage Compensation and Civil Liabilitie
期刊名称：《法学研究》
期刊年份：
作者：李承亮
单位：武汉大学法学院
中文关键词：损害赔偿;侵权责任方式;分离模式;恢复原状;价值赔偿
英文关键词：damage compensation;method of tort liability;separation model;restoration;compensation in value
中文摘要：
德国法中损害赔偿的外延远远大于我国民法中的赔偿损害和赔偿损失。弄清损害观念的源流和德国民法中的赔偿方式，才能澄清由于将德国法中的损害赔偿等同于我国法中的损害赔偿所造成的误解。以德国损害赔偿法为参照，可以发现我国现行侵权责任方式的缺陷。侵权责任方式不应只停留在列举的层面，不同的侵权责任方式之间存在内在的逻辑关系。至少在侵权法领域，集中系统地解决民事责任的方式与范围问题是可能的。
英文摘要：
The difference between the tort liability under Chinese civil law and the damage compensation for tort under German civil law doesn’t lie in the different protection levels. The concept of “damage compensation” is in the broad sense under German law and in the narrow sense under Chinese law. The eight methods of tort liabilities listed by § 134 of the General Principles of the Civil Law of China are either the concrete contents of restoration or the compensation in value, which belong to the broad sense of damage compensation. The difference between the tort liability under Chinese law and the damage compensation for tort under German law is also not the difference of “double tasks” and “single task”. The General Principles of the Civil Law of China provides not only the establishment requirements for various kinds of torts, but also the concrete methods of tort liabilities, while German Civil Code, in addition to establish whether the damage compensation is tenable, also faces the problems of ascertaining the methods and scope of compensation. However, it is entirely different between the General Principle of the Civil Law of China and the German Civil Code on how to ascertain the methods of tort liabilities or damage compensation. The former rests only on enumeration, and provides neither the internal logical interrelations of various methods nor the general principle of their applications, so it can only list the methods of tort liabilities according to different kinds of torts, which is in the same way as those specific provisions under the Criminal Law of China. German Civil Code adopts the separation model, first dealing with the problem of whether claim for tort damages is tenable through prescribing the establishment requirements of different kinds of torts under § 823ff., and then solving the problems of how to compensate through prescribing the contents and scope of damages under § 249ff. According to the experience of German law, there exist certain logical interrelations between different methods of tort liabilities and there are some rules of their applications. In order to deal with the methods and scope of tort liabilities systematically, the Chinese civil law should on the one hand ascertain the priority order between the restoration and compensation in value, and on the other hand establish the principle of overall compensation, so that the scope of tort liabilities lies only on the extent of damage.
全文阅读： 点击下载
