民法总则应如何设计民事责任制度

On the Civil Liability of General Provisions of Civil Law

《民法总则(草案)》把停止侵害、排除妨碍、消除危险、返还财产、恢复原状作为承担民事责任的方式,违反了民事责任的质的规定性,有些也与过错责任原则不匹配,可取的方案是将其作为民事权利救济的方式。合同法将减少价款、退货作为违约责任的方式也不科学,《草案》未把它们作为承担民事责任的方式加以规定是合适的,应予坚持。民法总则应全面承认各种民事责任,包括缔约过失责任、不履行单方允诺所生义务产生的民事责任、不履行不当得利返还的民事责任、不履行无因管理关系中义务产生的民事责任。履行责任、返还责任、保证责任等虽然名为民事责任但实则系民事义务的情形,不得归入民事责任的制度之中。旅游、观看演出等合同中,旅行社等义务人违反义务的确造成了旅游者的精神损害的,应当成立精神损害赔偿责任,并应纳入违约责任之中。关于民事责任的方式合并运用,应当采取"前款规定的承担民事责任的方式,可以单独运用;在符合构成要件并不违反公平正义的情况下,也可以合并运用"的表述。责任竞合制度应在几个方面完善:在违约行为侵害固有利益且不得重复承担责任的情况下,可以发生债务不履行责任与侵权责任的竞合,基本上是赔偿责任的竞合,承认物的瑕疵担保责任与一般违约责任的竞合,以及产品瑕疵场合的违约责任与侵权责任的竞合,可用法律明文或规范意旨限制责任竞合。

The Draft of General Provisions of Civil Law （GPCL） has defined cessation of infringement, removal of an obstruction, elimination of danger, return of property and restoration to the original status as the methods of assuming civil liability. It is against the nature of civil liability, and some of the methods are not in accordance with the doctrine of fault liability. The desirable scheme is to regard them as the methods of relief of civil rights rather than assuming civil liability. Compared with Contract Law, it is scientific that the Draft of GPCL has not defined returning the goods or reducing the price as the methods of liabilities for breach of contracts. The GPCL should provide all the kinds of civil liability, such as the liabilities of contracting fault, violation of unilateral promise, nonfulfilment of return of unjust enrichment or obligation of voluntary service. However, the spectrum of civil liability should exclude the liabilities of performance, return and guarantee and so on, which are obligations though in the name of liabilities. In a contract for a travel or seeing a show and so on, when the service provider fails to fulfil the obligation, the tourist or the audience in mental suffering could claim emotional damages, which should be considered within liability for breach of contract. The GPCL should provide that the methods of assuming civil liabilities can apply separately or jointly in case of no violation of fairness and justice. The stipulation of concurrence of liabilities should be improved as follows： where the breach of contract infringes upon the inherent interests, there is the concurrence of liability for breach of contract and tort liability if the aggrieved party is entitled to choose only one claim, mostly is the concurrence of such two liabilities for compensation; it should be admitted that the common liability for breach of contract and liability for warranty against defects can concur; where a defective product causes harm, there is the concurrence of liability for breach of contract and tort liability; the concurrence of liabilities can be confined by legal provisions and legislative intent.