公平责任的适用分析

Analysis of the Application of Equitable Liability

公平责任作为分担损失依据,并非为侵权行为损害赔偿的兜底条款,但由于条文的概括性反倒使其成为部分法院"和稀泥"的裁判准据。因此,文章以"劝阻吸烟猝死案"这一争议案件为切入点,运用解释论等方法,围绕公平责任的责任主体、主观要件、因果关系认定、行为类型限制和损害程度等问题展开,具体分析每个要件中的争论热点,明确公平责任的适用范围,理清公平责任的适用路径,稳定侵权法的结构体系。

As a basis for sharing losses, fair liability is not a miscellaneous provisions of damages in tort law. However, due to the vagueness of the provisions, it has made it as a reason to reconcile differences regardless of principles in some courts. Therefore, this article will focus on the analysis of the application of fair liability, with the case "Persuade someone not to smoke which results in death"as a beginning,using the methods of interpretation and so on, and focusing on the liability subject, subjective elements,causation and the conduct of fair liability. Problems such as type restriction and damage degree are explored. Specific analysis was made of hot points of debate in each element to clarify the application scope of fair liability and the applicable path of fair liability. So the structural system of tort law will be stabilized.