论风险责任概念的确立

On Establishment of the Concept of Vicarious Liability

自己责任原则是现代侵权法的基本原则之一,但在适用非按份责任形态的数人侵权责任中,却普遍存在责任人可能为本不属于自己的最终责任份额承担责任的现象。对此问题学说上不但鲜有专门研究,甚至连指称这部分责任的专门术语也不存在。通过对债务与责任的区分、多数人债务与多数人责任的区分,可以清晰地看到最终责任与风险责任的区分。所谓"风险责任",就是责任人承担的超过最终责任份额的责任部分,其实质是受偿不能风险。确立风险责任概念,就形成了"自然债务—最终责任—风险责任"的侵权责任概念谱系,能够精确地描绘债务和责任的重合或单独存在状态。

One of the fundamental principles of modem tort law is that one should assume liabilities for his own conducts. But in cases where many tortfeasors are involved whose liabilities are not severable, one may bear liabilities which are beyond his due scope. However, there are few studies on this issue and lack of the particular terminology for such liability. Based on the distinction between obligation and liability as well as that between multi- person obligation and multi -person liability, it is clear to find the distinction between ulti- mate liability and vicarious liability. The so - called ＂vicarious liability＂ refers to the part of liability which is beyond the liable one＇ s due share of liabilities ; thus it is the risk of insolvency. The vicarious liability contributes to form the liability spectrum of ＂natural obligation--ultimate liability--vicarious liability＂, and it helps to accurately describe the overlapping or independent state of obligation and liability.