论侵权案件裁判中的公共政策因素——以《最高人民法院公报》侵权案例为分析对象

On Public Policies in Judging Tort Claims:An Analysis of Tort Claims in Communique of the Supreme People's Court

虽然从形式上看,在侵权案件中公共政策并不作为裁判的依据直接加以引用,但它却对司法裁判过程和结果产生直接的影响。《最高人民法院公报》中的典型案例显示,价值优位、社会环境、秩序管理、责任保险等公共政策因素对侵权案件的裁判产生了重要影响。侵权案件裁判中考虑公共政策因素是实现侵权责任法目的的要求、侵权责任适应社会发展的需求以及现代法院角色变迁的诉求。从侵权责任构成要件的角度来分析,上述公共政策因素通过损害的认可、过错的认定、因果关系的确定、抗辩事由的确认等方式得以实现。

Although not cited directly as the formal basis for judgments in tort claims,public policies exert an immediate impact on judicial proceedings and their results.Through an analysis of tort claims in Communique of the Supreme People＇s Court,this essay combines the policy science in public administration with the tortuous liability in civil law,adopts an empirical approach,and discusses public policies in tort claims from a multidisciplinary perspective.We attempt to describe what and why public policies are considered,and how public policies are implemented in judging tort claims. Significant influence is imposed on the result of tort claims by such public policies as value priority,social environment,order management,liability insurance and so on.Generally,the court decides the scope of protection according to the value priority of benefits.However,the decision is also affected by the social contextual factors in a given period.Furthermore,administrative factors prevent the court from getting involved in various social disputes.In addition,the existence of insurance constitutes a potential reason for judgments against the defendant. There are mainly three justifications for public policies to be considered in judging tort claims,namely,to implement tort liability law,to make tortuous liability fit in with social advances,and to transform the court＇s role in the modern society.Such purposes of the tort liability law as ＂freedom of action＂ and ＂value of security＂ are substantiated in all kinds of values in specific cases,namely,where to weigh values is to consider public policies.In judging tort claims,the court attaches importance to social background together with the social effects of settlement of tortuous disputes,which is an important way for tortuous liability to fit in with social advances.Modern courts have abandoned the one-sided concept of formal justice,and turned to considering public policies in judging tort claims for substantial justice. From a structural perspective of tortuous liability,the above public policies can be implemented by admitting damage,identifying negligence,determining the sequence of cause and effect,allowing defenses,etc.To a certain extent,public policies decide whether relevant parties＇ factual damage is admissible by the court to award a relief.Besides,there is some disagreement and controversy over the connotation of negligence,which needs to be settled by the court in considering various factors,including public policies in specific cases.Another key issue in determining liability is the remoteness of damage,and public policies play a vital role in defining it.Finally,valid defenses are allowed to exempt or mitigate tortuous liability and thus implement public policies in tort claims.