论分别侵权行为

A Research on Respective Torts

分别侵权行为是《侵权责任法》第11条和第12条规定的侵权行为形态,与共同侵权行为、竞合侵权行为、第三人侵权行为一道构成多数人侵权行为体系。分别侵权行为是指数个行为人分别实施侵权行为,既没有共同故意,也没有共同过失,只是由于各自行为在客观上的联系,造成同一个损害结果的多数人侵权行为。分别侵权行为的外延可以界定为:分别侵权行为分为典型的分别侵权行为和叠加的侵权行为两种;叠加的分别侵权行为分为全叠加的分别侵权行为与半叠加的分别侵权行为。

Respective tort is the modality of tortious act stipulated by article 11 and 12 in Tort Liability Law of the People＇s Republic of China. It＇s a part of the multi-torts system, together with the other three modalities of tortious act, which are joint act of tort, overlapping act of tort and the third party＇s act of tort. Respective tort means that two or more persons commit torts respectively with neither joint intention nor joint negligence, but causing the same damage only because of the objective connection between respective conducts. The legal characteristics of respective tort covers the fonowing four aspects： 1） two or more persons commit torts respectively; 2） these two or more persons＇ conducts objectively aim at the same victim or the same object; 3） each person＇s conduct makes contribution to the final damage, either jointly or respectively; 4） causing the same damage which is divisible. Respective tort can be classified as the typical respective tort and the overlapping respective tort. And the latter can be furtherly divided into the wholly- overlapping respective tort and the partially- overlapping respective tort. As to the typical respective tort, the tortfeasors shall assume shared several liabilities. As to the overlapping respective tort, when the causative potency of each tortious conduct are added tagether, that will exceed 100 percentage. So the outcome of the added causative potency of all tortious conduct should be used to be divided by the amount of the tortfeasors, that will get to a average percentage of the causative potency, which will be the standard of the several liability of each tortfeasor. As a result, each tortfeasor of wholly- respective tort will assume the whole liability of compensation, while each tortfeasor of partially- respective tort will assume the joint and several liability. However, the several liability among the torffeasors will change correspondingly.