重大过失理论的构建

On the Theory of Recklessness

传统大陆民法理论关于重大过失的解说既无法提供明确的认定方法,又内在地欠缺解释力。重大过失应当是一种有认识的过失,但同时须在客观上制造了巨大的危险。它是一种偏主观的、行为人很大程度上可避免的过错,是一种具有较强道德可责难性的过错。它是介于故意与普通过失之间、更接近于故意的一种独立过错类型。有认识的认定应坚持"知道"与"有理由知道"两级分类,并有效运用司法推论和立法推定。危险巨大性的认定主要涉及损害可能性与损害程度两方面判断。重大过失的法律效果原则上与故意相同,但有例外。

The theory of recklessness in traditional civil law system is simple and crude in content and fragmented in system. Lacking of explanatory power inherently, it carl not provide clear criterion and methods for judicial adjudication and is unable to explain why recklessness amounts to intention. The theory of fault in criminal law has always been influential to civil law, so that the recklessness theory in civil law can well absorb the essence of related theory in criminal law. Firstly, recklessness should be a kind of conscious negligence, that is, the actor has knowledge about the high probability of the damage occurred and the non-legitimacy of his act. Secondly, the actor should de facto create a huge risk, that is, the probability that the damage would occure is very high and the damage occurred is huge after the realization of risk. Such fault is a subjective fault which can be avoided to a great extent by the actor and a kind of fault under strong moral condemnation. It falls into an independent type of fault between intention and ordinary negligence and is much closer to intention. The judgment of ＂knowledge＂ should stick to the classification of ＂knowing＂ and ＂having reason to know＂, and judicial inference should be effectively ap- plied in typical situations and legal presumption applied where law expressly provides. The determination of the seriousness of risk refers to the comprehend judgment of the probability and extent of damage, and the cost of prevention should also be taken into account. The legal effect of recklessness is in principle the same as that of intentional tort with also some exceptions. The legal effect of recklessness mainly includes its influence on the establishment of liability for damage, on the application of the rule of contributory negligence, on the presence or absence of the right of recourse when somebody is held accountable for other person＇s behavior, on the liability for damage of depository without charge or donors, on the amount of compensation for mental losses, and so on. Additionally, recklessness is the manifestation of maliciousness and thus constitutes a typical circumstance where the punitive damages are awarded.