论交通事故责任中的过失相抵

On the Negligence Counterbalance in Traffic Accident Responsibility

侵权责任中,特别是无过错侵权责任中能否适用及如何适用过失相抵的问题,理论界一直颇有争议。通过对过失相抵的概念和适用规则进行探究,以及对各国交通事故责任中的过失相抵进行比较考察后发现,交通事故责任中完全可以适用过失相抵。在我国现有立法背景下,对机动车之间发生的交通事故,应主要进行过错比较,适当考虑原因力;对机动车与非机动车驾驶人、行人之间发生的交通事故,如不能证明机动车方有过错的,则应以原因力的比较为主,同时考虑受害人的过错程度。

Whether the negligence counterbalance is applicable and how to apply it in infringement responsibihty, especially in non- mistake infringement responsibihty, are always very controversial among theories. By studying the definition and applying principles, and by contrasting the negligence counterbalance in traffic accidents responsibility in different countries, it is safe to conclude that negligence counterbalance is by all means applicable in traffic accidents responsibihty. In China＇s current legislation background, when the traffic accident happens between vehicles, the faults of each side should be compared and the causes of the accident should be taken into consideration properly; when the traffic accident happens between vehicles and pedestrians, the comparison of the causes should be taken as the main point if it can not prove that it＇s the vehicle＇s fault, taking the victim＇s fault into consideration as well.