侵权补充责任的体系冲突与整合

System Conflict and Integration of Tort Supplementary Liability

我国法律中关于侵权补充责任的规定具有鲜明的中国特色,但就侵权补充责任体系而言,存在着与违约责任的外部体系冲突,以及由于适用条件不一致所引起的内部体系冲突。对于保护义务违反所导致的侵权补充责任与违约责任的外部体系冲突,应以合同是否以保护为给付目的来确定两种责任形态的适用顺序,违约责任优先适用于以保护为给付目的的合同中,侵权补充责任则在非以保护为给付目的的其他合同中优先适用。对于适用条件不一致所引起的侵权补充责任内部体系冲突,应基于补充责任中直接责任人和补充责任人层次责任的不同,将补充责任的适用限于“直接责任人故意作为侵权+补充责任人过失不作为侵权”的情形。

The provisions on tort supplementary liability in China's law have distinct Chinese characteristics,but as far as the system of tort supplementary liability is concerned,there are conflicts with the external system of liability for breach of contract and internal system conflicts caused by inconsistent application conditions.For the conflict between the tort supplementary liability caused by the breach of the obligation of protection and the external system of the liability for breach of contract,the application order of the two forms of liability should be determined by whether the contract takes protection as the purpose of payment.The liability for breach of contract is preferentially applicable to the contract for the purpose of payment,and the tort supplementary liability is preferentially applicable to other contracts not for the purpose of payment.For the internal system conflict of tort supplementary liability caused by inconsistent application conditions,the application of supplementary liability should be limited to the situation of"the direct responsible person intentionally acts as an infringement+the fault of the supplementary responsible person does not act as an infringement"based on the distinction of different levels of liability between the direct responsible person and the supplementary responsible person in the supplementary liability.