过错责任之为民法基本原则的证明

The Logic of Fault-liability As One Basic Principle of Civil Law

意思自治是民法的基本精神,在这一精神之下衍生出的所有权自由、契约自由、过错责任原则,是民法的基本原则。但过错责任原则能否作为民法基本原则,面临两种挑战一是它能不能贯通民法体系,二是它是否仍是侵权行为唯一的归责原则。在意思自治的精神之下,过错是意志的外化,是一种意思,在肯认“意思主义”价值的前提下,过错可以解释民法诸多制度及现象,过错责任原则可以贯穿民法,成为民法的基本原则。

Self-governance by will is the fundamental spirit of civil law. Derived from this spirit, freedom of entitlement, freedom of contract and fault-liability are regarded as three basic principles of civil law, Among them, however, whether fault-liability could be justified as one basic principle faces two challenges： whether it could be applicable throughout the whole system of civil law; and whether it remains the sole liability principle of torts. This article stands that fault is the embodiment of will within the spirit of self-governance of will, that is to say, fault is a kind of ＂will＂. When we admire the value of ＂will＂, fault can be used to interpret all kinds of institutions and phenomena in civil law. Therefore, fault-liability can be applicable throughout the civil law as its basic principle.