论危险责任及其立法模式

On the Liability of Risk and Its Legislative Model

现代侵权法已经从过错责难与填补损害扩展到风险归责与分担损害,危险责任和过错责任并列成为最基本的二元归责原则。危险责任是工业化社会的产物,已成为现代风险社会的常态责任。危险责任和过错责任在责任基础、主体原型、调整对象以及风险来源等方面存在着本质差异。危险责任构成的基本要素包括利益获取、损害分散、危险控制、受害人自我保护、合理信赖等。比较主要国家危险责任的立法模式,以证成我国侵权责任法中危险责任选择的是一般条款和类型化相结合的立法模式。

The modern tort law has been expanded from criticizing the mistakes and filling the damage to sharing the liability of risk and damage. The liability of risk and the liability of fault have been tied as the most fundamental principle of the dual attribution. Liability of risk is a product of the industrial society,which has become the norm in the modern social responsibility for risks. Liability of risk and liability of fault have essential differences on the basis of liability,the main prototype,the object and source of risk and so on. The basic elements of the liability of risk include liability for interest,damages dispersion,risk control,the victim self-protection,reasonable reliance,etc. Comparing to the legislative models of the liability of risk in the major countries,the choice of our liability of risk in tort law is the combination of general terms and typology.