论《海商法》第169条之第三人——兼评《关于审理船舶碰撞纠纷案件若干问题的规定》第5条

On concept of third party under article 169 of Chinese Maritime Law——Comments on article 5 of Provisions of the Supreme People's Court on Some Issues about the Trial of the Cases of Ship Collision Disputes

互有过失碰撞船舶造成人身伤亡的,国际上有"对第三人的人身伤亡连带赔偿责任制"和"对一切人的人身伤亡连带赔偿责任制"两种制度,中国《海商法》第169条采用前者。第三人不应包括船舶所有人、船舶承租人等责任主体以及对碰撞有故意或重大过失的船员。两种责任制度各有其合理性和立法政策考虑。学者、司法者通过对"第三人"的扩大性解释,使之涵盖或等同于一切人,忽视了两种责任制度背后的不同的合理性基础和立法政策,是不合适的。

There are two legal systems for the liability of vessels which are involved in a collision with mutual faults, for personal injuries suffered from collision, i.e. the joint and several liability for personal injuries of third parties, and the joint and several liability for personal injuries of all victims. The former is adopted in Chinese Maritime Law. The concept of third party excludes the subjects of liability such as the owner, the lessee of vessels involved. It also excludes the employees of the vessels involved who have deliberately caused the collision or is reckless negligent for the occurrence of the collision. The two systems are rooted in its own rationality and considerations of legislation policies. The extended elaboration of the concept of third party by some academics and the judiciary （the Supreme Court） to cover all victims is improper because it ignores the differences in rationalities and consideration of legislation policies of the two systems.