论金融专家对第三人的民事责任——以德国法为借鉴

On Civil Liability of Financial Experts to the Third Party——Learning from German Civil Law

随着现代金融交易的兴起,金融专家对第三人的民事责任问题日益突出。德国法经历了从金融专家无须对第三人承担责任到需要负责、第三人范围逐步扩大的过程。2002年,德国债法改革吸收判例和学说解释,承认了附保护第三人作用合同,并规定了基于缔约过失的专家责任。德国法采用合同和准合同方式更有利于平衡专家和第三人的利益。为了加强对受害第三人的法律救济,我国应当借鉴德国模式,采用合同和准合同的方式,赋予法官一定的自由裁量权,解决金融专家对第三人的民事责任问题。

With the emerging of modern financial trade, the problem of civil liability of financial experts to the third party arises. The German Civil Law went through a process of from financial experts＇ riddance of liability to the third party to a liability necessity and a widening of the scope of the third party. In 2002, the reform of German Obligation Law accepted the cases and the theories of the jurists. Contract with protective effects towards third party and expert liability based on contract-making mistakes were codified this time. German law adopts the contract and quasi-contract approach which is more useful to balance the interests between the expert and the third party. In order to strengthen the law protection of the third party, and according to the provisions of China＇s contract law, we should learn from the German model. The contract and quasi-contract approach should be adopted to solve the problem about the civil liability of financial experts towards the third party.