建筑物抛掷物致害的“不赔”与“赔”——以侵权案例的体系化分析方法为视角

On Pro and Con for the Compensation As the Result of Damage Caused by Objects Falling from Buildings——From the Perspective of Systematized Analysis of Tort Cases

对建筑物抛掷物致害应该采用侵权案例的体系化分析方法。侵权案例的体系化分析方法,是以侵权行为形态的体系化分析和侵权责任形态的体系化分析为基本方法,依据侵权法理论自身的展开路径,分步寻找请求权基础的侵权责任法适用方法。建筑物抛掷物致害是一般侵权行为,不应该承担侵权责任,不适用建筑物搁置物、悬挂物致害和物件致害法理,也不适用公平责任。但这并不意味着特殊类型的案件没有侵权法救济。从公共政策等多方面考虑,特殊建筑物抛掷物致害可以根据其他侵权法理论建立特殊责任条款。

A systematized way of analysis should be applied where cases of an object falling from a building are concerned. A systematized way of analysis, in this sense, refers to, by relying on the systematized analysis on both the system of tort form and the system of tortious liability form, the efforts trying to seek the ways in which tortious liability can be applied on the basis of right of claim. This process develops naturally along the path of tort law theory itself. Since the damage caused by an object falling from a building is an ordinary tort, tortious liability should not be involved, and it should be distinguished from the cases concerning the damage caused by an object placed or hung on a structure or other special properties, so equitable liability should not be taken into account. However, it does not mean that there is no means of relief or compensation for such special cases. With regard to public policies and other relevant aspects, damage caused by an object falling from a building can be compensated according to clauses set specifically according to particular tort law theories.