“行人非法进入高速公路”视域下经营者民事责任研究

Study on the Civil Liability of Operators Under the Vision of “Pedestrian Illegally Entering the Expressway”

司法实践中就行人非法进入高速公路受到伤害的案件在法律适用上存在较大分歧,高速公路经营者是否承担责任、承担责任的依据、归责原则和具体计算均不一致。通过实证研究和理论分析可知,高速公路交通运输属于高度危险活动,但高速公路并非绝对就是高度危险活动区域;高度危险活动区域的认定应具有相对性,行人非法进入高速公路时高速公路才可被认定为高度危险活动区域,高速公路经营者才承担高度危险责任,此时,高速公路经营者应承担的是一种加重型过错推定责任。此类事故中,高速公路经营者和肇事第三方应根据各自有无过错、第三方客观上能否给予赔偿之不同,承担按份责任或无追偿权的不完全补充责任。

The empirical research done by this paper shows that there is a big confusion in the application of law when adjudicating the highway trespass of pedestrians who have suffered damages by vehicles of third-party.Some decisions were based on Article 123 of the Civil Law;some were based on Article 37 or Article 76 of the Tort Liability Act;while other were based on Article 9 of Judicial Interpretation of Traffic Accident Damages.There is a lack of unified practice.Highways will be considered as highly hazardous areas only when there is a highway trespass of pedestrians.Highway operators will bear liability based on an aggravated presumption of fault.This paper holds a view that,in such accidents,the highway operators and the third party perpetrators should bear proportionate responsibility,non-true joint and several liability or supplementary liability according to their respective fault or by taking into account the ability of the third party perpetrators to compensate.