公平责任的滥用与《民法典》侵权编的应对

Abuse of Fair Responsibility and Response in Book of Tort Liability of the Civil Code

我国《侵权责任法》第24条规定:行为人和受害人对损害的发生都没有过错的,可以根据实际情况,由双方分担损失。该条文以一般条款的形式赋予法官较大的自由裁量权,导致公平责任原则滥用,使公平责任不再公平。《民法典》第1186条对公平责任原则进行了修正,明确公平责任原则仅是行为人与受害人之间的损失分担规则,而非归责原则;采纳与大陆法系国家相同的特别规定的规范模式,将公平责任的适用仅限于法律规定的因自然因素引起的紧急避险、完全行为能力人无过错使自己陷入无意识或失去控制的状态致他人受损害、高空抛物无法查明侵权人时使用人的补偿三种情形,使得公平责任不再被滥用。

According to the Tort Liability Law of the People’s Republic of China,the loss can be,with concrete situation considered,shared by both actors and victims if neither of the party is to blame for it. This provision gives judges greater discretion in the form of general clauses,which leads to the abuse of the principle of fair responsibility and makes fair responsibility no longer fair. Article 1186 of the Civil Code amends the provisions of the principle of fair responsibility,adopting the same principle as in other civil law countries,and clarifies that the nature of the principle of fair responsibility is only the rule of sharing of losses between the perpetrator and the victim,not the principle of imputation. The amendments restrict the application of fair liability to occasions when an injury is caused by an emergency escape from danger,and when a person with full civil capacity causes injury to another during a temporary episode of unawareness of his/her own actions or loss of control,and when the owner shall bear tort liability in the event of damages of others caused by littering by unidentified tortfeasor,so that the fair responsibility is no longer abused.