摘要
为他人行为责任的基础在于赔偿义务人能够支配加害人的行为或者能够对直接加害人的行为产生重大影响,此即支配或重大影响说。该说不仅是在对为他人行为责任各具体责任形态的构成要件、免责事由等进行归纳的基础上得出的结论,而且还有着深刻的经济和社会原因,即民事法律关系中隶属关系的存在、客观上人格不平等的凸显、个人自由意志的削弱以及责任保险制度的发达。提出支配或重大影响说对于梳理侵权责任法为他人行为责任的理论体系和责任形态、确定不同的责任类型、细分同一责任的不同层次以及在当事人之间合理分配损害都具有重要意义。
Tort Liability for the acts of others, such as vicarious liability and guardian＇s liability, is an important category of tort liability in modern law. There are different doctrines on the foundation of this category of liability, such as fault, breach of social security duty, abnormally dan- gerous activities, principle of fairness, loss spreading, deeper pockets, respondeat superior, etc. Based on the analysis of the above--mentioned theories, the author puts up a new doctrine, which can be called Theory of Domination or Significant Impact, that is, the foundation of tort liability for the acts of others is the relationship of controlling and being controlled. It means that if one can control the act of the perpetrator or has significant impact on perpetrator＇s act according to a contract or other relationships, he should take the compensation responsibility for the perpetrator＇s tort act under his control even he has no concrete fault. This conclusion is based on the fact that the tort law of almost all the countries requires the existence of certain relationships between the compensator and the perpetrator. In the relationships such as employer--employee and parents--children, one can dominate or direct the other＇s act legally. Where there is no power of control, there is no tort liability for the acts of others. This conclusion is also based on profound economic and social reasons. Firstly, while the principle of equality is the fundamental principle of civil law, there are still some subordinate relations in civil law. Since employees and children should obey the employers＂ and parents＂ orders, the consequences should also be taken by the superior. Secondly, the doctrine of Own Responsibility and Fault Liability is based on independent personality and free will. But in modern society, with the rapid expansion of enterprise scale, the strengthen of government intervention and the occurrence of kinds of means of mind control, in more and more occasions one cannot act according to his own will but a
出处
《法学研究》
CSSCI
北大核心
2009年第5期37-51,共15页
Chinese Journal of Law
基金
尹飞主持司法部国家法治与法学理论研究项目"侵权法替代责任研究"(项目批准编号08SFB5019)的成果之一
关键词
侵权法
为他人行为责任
归责基础
支配或重大影响说
tort law, liability for the acts of others, foundation of liability, theory of domination or significant impact
