论侵权法的社会化——以侵权法与保险的关系为重点

Socialization of Tort Law——Focus on the Relationship between Tort Law and Insurance

现代社会赔偿为首位的原则改变了侵权法的性格,突出表现在从个人责任的追究转移到损失的分散。侵权法开始扩张到严格责任,并在规范或事实上受到保险观念的影响。但是,以原告—被告的利益关系为基本结构的侵权法仍然面临着责任追究成本过大、赔偿范围与数额不确定、人际不公平等批评,其进一步扩张也导致了责任保险业的危机。道德论者在矫正正义与社会契约论的理论基础上重新奠定了侵权法的正当性。功能主义论者也大多认为,侵权法在损害预防上具有不可取代的作用。此外,保险制度自身的特点决定了某些损害不能通过它来填补。因此,侵权法规则并不能被保险所取代,但是无论从现实上还是理论上讲,过分扩张侵权法缺乏正当性。

The modem tort law principle, which provides compensation with prio of tort law, making the latter switch its emphasis from personal liability to loss rity, has changed the character spreading. The tort law, on the one hand, expands itself to strict liability and is influenced by the insurance ideology, on the other hand, the tort law ,whose construction must base on the bilateral structure of plaintiff-defendant relationship, still faces such criticism as huge administrative cost, uncertainty and interpersonal unfairness. What＇ s more, its expansion has caused the crisis in the liability insurance market. Confronting the tort law crisis, the moralists have in the few decades made efforts to again justify tort law with theories of corrective justice and social contract. The functionalists also point out that tort law owns the irreplaceable position in loss-prevention. Moreover, it＇ s the essence of the insurance system that limits the scope of its function, as a result, only part of the damages would be compensated. In conclusion, tort law cannot be replaced by insurance system, but there is also neither posi- tivistic nor theoretical justification for the hyper expansion of tort law as today we have.