侵权立法若干问题思考

Several Thoughts on Legislation of Tort

侵权法应定名为侵权责任法而不是侵权行为法。侵权请求权应包括绝对权请求权,同时在法律适用上应理顺侵权损害赔偿请求权与绝对权请求权之间的关系。侵权法的归责原则具有"原则—规则"双重属性,是贯通侵权法内部体系和外部体系的枢纽。作为原则,归责原则应包括过错责任、无过错责任、过错推定责任和公平责任四元体系。作为法律规则,归责原则具有模糊性和具体性。最大限度的类型化是侵权责任立法的理想,采取"框架式全面类型化"即规定侵权必要类型并采取总分结构,是类型化的现实模式。

The code of tort should be named ＂the liability of tort law not ＂the act of tort law＂. The claim on tort includes the claim on absolute fight, and we have to deal with the relation between the claim on damages and the claim on absolute fight. The principles of tort liability have the double characters of both principle and rule, and they are the bridge connecting the inner and outer system of tort law. As principle, there are four kinds of liability including fault liability, no fault liability, presumptive fault liability and equitable liability. As rules, they are blur and idiographic. It is the dream of codification of tort to maximize the types of torts, and the realistic mode of types is totally - type - in - scheme which stipulates the necessary types and is coded in general -specific structure.