论缔约过失责任与不作为侵权责任的合理界分

On the Reasonable Division of Liability for Negligence in Contracting and Liability for Tort by Non-acting

缔约过失责任是为了维护缔约过程中的信赖利益而创设的独立的民事责任制度,其民法理论根源在于诚实信用与公平原则。不作为侵权责任与作为侵权责任相对应,关注的是作为义务被违反时的权利救济问题,其民法理论根源在于诚实信用与公序良俗原则。探求两种制度存在的更深层次的法理根源,则是对法律与道德关系的追问。然而,两种责任的目的与价值并不相同,因此,合理厘定二者的界限,避免不必要的竞合十分重要。

As a separate liability, liability for negligence in contracting is for protecting trust benefit in concluding a treaty, it＇s theory bases are the principle of faithfulness, credit and the principle of equity. Compared with liability for tort by active act, liability for tort by non-acting is to protect rights when acting obligation is breached, its theory bases are the principle of faithfulness and credit and pinciple of public order and kind custom. The legal theoretical source of the two kind of liabilities is the relation of law and morals. However,they have respective purposes and value, so, it is important to divide them reasonably and avoide their unnecessary concurrence.