我国侵权责任法的侵权构成模式——以“民事权益”的定位与功能分析为中心

Composing Mode of Torts in Chinese Tort Liability Law

依国内学术界多数观点,由于侵权责任法没有对权益进行区分保护,所以我国侵权责任法的侵权构成模式属于法国法模式。但是否将民事权益作为侵权责任构成要件的判断要素,才是法国法模式与德国法模式的本质区别。我国侵权责任法契合未来民法典的整体布局,明文以民事权益作为侵权责任成立的判断要素,在立法模式上属于德国法模式。但在适用层面,德国法模式未必是一个很好的选择。侵权责任法(尤其是第2条)的独特规定及特色不同于德国法,并缺少与德国民法典第823条第2款和第826条类似的法规范支撑。可依"欧洲侵权法原则"提出的"弹性制度"解释权益的区分保护问题。

According to the majority point of view in our domestic academia, the composing mode of torts in Chinese Tort Liability Law is the French mode characterized, because the applicative scope of our tort law is barely limited, at the same time, the law does not offer the differentiated protection to the civil rights and interests. But it is worthy asking whether the theory is correct or not. The essential difference between the French mode and the German one is whether to regard the civil fights and interests as one of the elements to establish the tort liability. It is also the key criterion to understand which mode our law shall belong to. In order to fit the overall layout of the future Civil Code, basing on the position of civil fights and interests protection, our Tort Liability Law makes it clear that the civil fights and interests are within the judging elements to establish the tort liability. Therefore, the composing mode of torts in our Tort Liability Law belongs to the German one. However, the German mode may not be necessarily a good choice on the applicative level, be- cause our Tort Liability Law （ especially Article 2） is unique on the provisions and features compared with the German tort law, and that it lacks the similar support of legal norms as paragraph 2, Article 823 and Article 826 in German Civil Code. Thus a possible interpretative approach is to apply the ＂flexible system＂ proposed by the ＂Principles of European Tort Law＂ to solve the problem of the differentiated protection of civil rights and interests ~ that is, to differentiate the protection degree of absolute title, absolute legal interests and other property legal interests, and thus define reasonably the ＂edge＂ and ＂extent＂ of the tort law.