论“侵害(trespass)”令状所体现的严格责任思想

On Strict Responsibility Ideas Embodied by Trespass

英美法上的"侵害"令状(trespass)经历了久远的发展历程。"侵害"令状不考虑加害人过错,实质因其具有绝对责任性质,根本无需考虑过错;美国法上现代意义的严格责任往往与过错有关,其"不考虑过错"是相对的,不是绝对的。因此,早期英美侵权法"令状"制度不能等同于现代意义的严格责任。但从法的历史继承看,其不考虑过错而责令被告承担责任的归责形式与严格责任具有相似性,具备了严格责任的雏形,为严格责任的发展提供了基础。

The trespass in the law of the United Kingdom and the United States underwent a long development process.The trespass does not consider the fault of an inflictor（the party causing injury）,and its essence is that the inflictor takes absolute responsibility and is not needed to consider his fault.In modern meaning of the law of the United States,strict responsibility is always related to the fault,that the fault is not considered is relative but is not absolute.Thus,the early trespass system of the United Kingdom and the United States is not equal to strict responsibility in modern meaning,however,from perspective of the historic inheritance of the law,its liability criterion by not considering fault but ordering the defender to take the responsibility has similarity to strict responsibility,possesses the primitive form of strict responsibility and provides the basis for the development of strict responsibility.