侵权责任法的不确定并列责任主体

Uncertain Paralleled Legal Subjects for Liability in China's Tort Liability Law

不确定并列责任主体是指侵权法对某种特殊侵权责任并列规定了两个以上应当承担责任的主体,但未确定其实施的侵权行为的性质,亦未规定责任承担形态的立法现象。这表明立法者立法技术的不成熟,属于法律漏洞,应当通过类推适用、目的性限缩和目的性扩张的方式进行漏洞填补。《侵权责任法》规定的不确定并列责任主体分为四个类型:一是属于明显漏洞的不确定并列责任主体实施的侵权行为的性质是竞合侵权行为,承担的责任是不真正连带责任;二是属于隐藏漏洞的不确定并列责任主体,实施的侵权行为是竞合侵权行为,承担不真正连带责任;三是不确定并列责任主体实施的侵权行为是单独侵权行为,由单独实施侵权行为的个人承担单独责任;四是第85条、第90条和第91条第1款规定的并列责任主体实施的行为构成客观的共同侵权行为,承担连带责任。编纂民法典时应当尽量避免这样的立法漏洞。

Uncertain paralleled legal subjects for liability refers to a legislation phenomenon that some articles of tort law have stipulated more than two parallel legal subjects for liability in some certain particular tort relationship, but fail to determine the nature of the tort and the modality of liability. It suggests the immaturity in legislative techniques of lawmakers, which is treated as a legal loophole that shall be filled up with the application of analogy, interpretation by purposive limiting and explanation by the expansion of the purpose of the law. There are four types of uncertain paralleled legal subjects for liability in China＇s Tort Li- ability Law. The first is the uncertain paralleled legal subjects for liability that belongs to obvious legal loophole whose nature of tort is concurrent tort and the modality of liability is apparent joint and several liability. The second is the uncertain paralleled le- gal subjects for liability that belongs to hidden legal loophole whose nature of tort is concurrent tort and the modality of liability is apparent joint and several liability. The third is the uncertain paralleled legal subjects for liability whose nature of tort is inde- pendent tort and the modality of liability is individual liability by the separate person who implements the infringement. The fourth is the uncertain paralleled legal subjects for liability which is stipulated in Article 85, Article 90 and Article 91 （ 1 ）. In this situation, the nature of tort is objective joint tort and the modality of liability is joint and several liability. The lawmakers should avoid such legal loophole as much as possible when compiling the Civil Code.