论侵权责任抗辩事由的配置及其体系

On System and Distribution of Defence Reason of Tort Liability

侵权责任的抗辩事由的体系应当从两个角度建立:从是否能够阻却责任成立的角度看,抗辩事由应当分为阻却责任成立的抗辩事由和责任成立后的减责或免责的抗辩事由;从侵权责任类型的角度看,应当分为过错责任的抗辩事由和无过错责任的抗辩事由。同时,我们应当吸收英美法系国家判例法中的抗辩事由"精细化"模式的合理因素,对每一类具体的侵权责任,根据其特殊性再考虑是否需要配置特殊的抗辩事由。在此基础上,构建侵权责任抗辩事由的体系。另外,抗辩事由的配置应考量如国家或社会政策价值取向等诸多因素,以保证抗辩事由的配置的科学性和实用性。

The system and distribution of defence reason of tort liability mainly are construted from two angles.From the view of liability foundation whether to be prevented,the defence reason of tort liability should be classified into the defence reason of the liability foundation and the defence reason of the liability reduction or liability exemption;from the view of fault,the defence reason of tort liability should be classified into the defence reason of fault liability and the defence reason of not fault liability.At the same time,we should study the fine legal mode of British and American tort law,the special defence reason is distributed for every type tort liability according to need.On the basis of above,the system of defense reason of tort liability are construted.In addition,the various factors as national and social policy and so should is considered to ensure that the distribution of defence reason of tort liability is scientific and practical when the defence reason of tort liability is distributed.