论共同危险行为的抗辩事由

Main Contents of Counterplea for Joint Dangerous Act

对于共同危险行为的抗辩事由,目前有肯定说和否定说两种学说,但均不够周延。共同危险行为的构成要件有三:主体复数性,行为人均实施了具有危险性的行为,损害结果系一人或数人所致、但不能判定谁是加害人。从共同危险行为的构成要件出发,可以得出其抗辩事由应当包括行为人能够证明自己不是真正的加害人和拥有一般抗辩权两类。

At present there are two kinds of theories on main contents of counterplea for joint dangerous act: affirmance theory and denial theory, which are both not distributive. The plural orientation of the subject, dangerous act taken by all actors, harmful consequences caused by one or several, who are not certain, all these are constitutive requirements of joint dangerous act. Based on it, the main contents of counterplea should include two facts that actors should prove themselves not to be real injurers and have the general right to counterplea.