风险领域理论与侵权法二元归责体系

Reconstructing Dual Liability Imputation System of Tort Law:Risk Domain Theory

近代民法上的过错责任原则包含"有过错就有责任"和"没有过错就没有责任"两个层面。近代以来,"没有过错就没有责任"原则逐渐被废弃,代之而起的是风险责任原则。风险责任以风险领域理论为基础,根据一定的标准判断风险发生于何人领域之内,进而确定无过错所致损害的分配。划定风险领域的考量因素包括利益获取、风险开启与维持、信赖保护、损害分散可能性、自我保护可能性等。现代侵权法归责二元体系由过错归责和风险归责构成,风险责任可涵盖现行的危险责任、交往安全义务中的无过错责任、公平责任等所有无过错致害责任。风险责任立法可采一般条款加类型立法的模式。

The traditional liability imputation system of tort law is based on fault liability and danger liability, in which danger liability is considered as an exception to fault liability. The tradi tional fault liability principle consists of two facets, that is ＂Where there is fault, there is liability＂ and ＂No fault, no liability＂. However, as the rising of intercourse safety responsibility （Verkehrspflichten）, the evolution of fault liability and the expansion of liability without fault, the tort law seems to fall into a state of chaos. Behind the chaotic state, the evolution of liability imputation system of tort law demonstrates that the principle of ＂No fault, no liability＂ has been gradually replaced by the rising of risk liability. This fundamental change means that the modern tort law no longer adopts the principle of ＂casum sentit dominus＂, but distributes the liability of damage without fault between the parties by deciding who should carry on the risk. The elements of deciding the risk domains includes acquisition of interest, initializing and maintaining risk, relianee, possibility of damage distribution, possibility of self-protection, and so on. In addition, the theory of risk domain has the ability to establish an open and dynamic liability distribution system. In individual eases, it can reach the balance among different elements of considerations. The new dual liability imputation system of modern tort law should consist of fault liability and risk liability, and the risk liability can replace all the liability without fault including the danger liability （Gefahrdungshaftung）, liability without fault in intercourse safety responsibility （Verkehrspflichten） and equitable liability. The legislation of risk liability can adopt the mode of combining general provisions with specific types of risk liability.