论违反安全保障义务的侵权责任分配 以第三人介入为视角

On the Distribution of Tort Liability in Breach of Security Obligation——from the Perspective of Third Party's Intervention

违反安全保障义务的侵权是侵权责任领域中的一种重要类型,特别当第三人介入时,存在两个侵权责任主体。根据我国现行法律和司法解释的规定,应当首先由第三人承担直接的侵权责任,不足以弥补受害人损失的,再由安全保障义务人承担相应的补充责任,并有权向第三人追偿。本文认为,安全保障义务人仅承担补充责任违背自己责任和过错责任原则,同时补充责任的顺位性降低赔偿效率,对受害人极为不公平。实际上,安全保障义务人承担的责任包括两种类型,一是自己责任,二是替代责任。安全保障义务人违反安全保障义务的不作为行为本身就构成侵权,根据人身损害赔偿司法解释第三条第二款的规定,义务人应当根据过错和原因力大小与第三人承担按份责任;对于第三人承担责任的部分,义务人应当根据《侵权责任法》第三十七条第二款和人身损害赔偿司法解释第六条第二款的规定承担程序意义上的全部补充责任并享有追偿权。

The breach of security obligation is an important tort type in the field of tort liability, especially in the case of third party＇s intervention, in which situation there are two main liability subjects. According to the provisions of China＇s current tort law, the third party shall bear the tort liability, and the security obligor shall bear the corresponding supplementary liability and enjoy the right to recover from the third party. In this paper, we consider that it is against the principle of self-responsibility and fault liability that the obligor of security guarantee only undertakes the supplementary liability, and the consequent displacement of the supplementary liability reduces the compensation efficiency, which is extremely unfair to the victim. In fact, the responsibility of the security obligator includes two types： one is his own responsibility and the other is his replacement responsibility. The security obligator＇s behavior itself to violate the security obligation belongs to tort, according to the interpretation from the Supreme People＇s Court on Some Issues Concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury, the obligor shall bear corresponding compensation liabilities respectively in appropriate proportions upon the extent of their faults or the reasons of such injury. As for the part of the responsibility of the third party, the obligor shall, according to the Tort Liability Law article 37 and the provisions of article 6 of the Interpretation on Compensation for Personal Injury, bear that of all supplementary liability in the sense of process and enjoy the right to recover from the third party.