安全保障义务人的补充责任——兼析《侵权责任法》第37条第2款之适用

A Supplemental Liability for Insurance Obligator: On the Application of the Section 2 of Article 37 of The Tort Law of the People's Republic of China

新近通过的《侵权责任法》第37条第2款规定了安全保障义务人的补充责任,其它国家则通常要求安全保障义务人与第三人承担按份责任或连带责任。安全保障义务人承担的补充责任实现了当事人间利益的平衡,解决了按份责任与连带责任中最终责任份额的适用困境。它是一种后位性的补充性责任,是不真正连带责任中的一种特殊形式。《侵权责任法》明确安全保障义务人承担责任的依据在于未尽安全保障义务,体现了过错认定的客观标准,同时强调安全保障义务人承担的是相应的补充责任,应根据未尽义务的程度承担责任。

The supplemental liability has been regulated in the section 2 of article 37 in newly passed law of the Tort Law of the People＇s Republic of China.In foreign laws,this has normally regulated as shared or joint liability which should be shouldered by the insurance obligator and the third party jointly.The supplemental liability for insurance obligator has been defined in the Tort Law of the People＇s Republic of China,however,has solved the difficulties in affirming the liability in the practice of distinguishing the shared and joint liability,and keeps a well balance the parties involved in the tort lawsuit.It is an afterwards supplement liability but not one of the special forms of liabilities in the joint liability.According to the Tort Law of the People＇s Republic of China,the affirming of the supplementary liability for insurance obligator is based on the fulfillment of one＇s obligations,which is an objective criterion in cognizing the wrong for tort.Therefore,the liability shouldered by the insurance obligator is supplemental,and judged in accordance with the extent to which the insurance obligator fulfils his or her obligations.