论高空抛物侵权责任及法律救济——兼评我国《侵权责任法》第87条之规定

Analysis On the Violation and Legal Aid Caused by Objects Thrown from Buildings:Also Comment on the 87th Article of China's "Tortious Liability Law"

我国《侵权责任法》第87条规定,加害人不明的高空抛物造成的损害由可能加害的建筑物使用人分担。该法条出台后在学界引起强烈反响,也给司法实践带来重重困难。从高空抛物侵权责任的理论界定入手,通过对高空抛物侵权责任的域外立法考察和国内立法解读,否定其作为一种独立的侵权责任形态存在的必要性,建议删除《侵权责任法》第87条规定。同时,基于高空抛物致害后果严重及举证困难等特点,建议从刑法和社会法视角为加害人不明的高空抛物案件受害人提供法律救济。

According to the 87th Article of China＇s ＂Tortious Liability Law＂,any injury by an unknown object from a building is shared by the users of the building.The introduction of the provision has aroused considerable controversy in the academic world and also brought about a lot of difficulty in the practice of justice.The paper starts with the theoretic definition of the tortious liability caused by objects thrown from Buildings,and then observes and explains the legislation of the liability both inside and outside China,denying the necessity of the independent existence of tortious liability and advising on the deletion of the 87th Article.Meanwhile,owing to the serious consequences caused by the objects thrown from buildings and the difficulty of proof, the author suggests that legal aid should be provided to the victim from the prospective of the criminal law and social law.