论与有过失

On Contributory Negligence

以受害人与有过失为理由,减免加害人之损害赔偿义务,本是一个蕴藏朴实的道理,而一时却难以在规范上圆满实践。其规范化所遭遇之第一个问题是,就受害人对自己利益之维护,在法律上是否得对其课以义务,当中涉及有无及范围的问题。由之发展出“对己义务”之法律关系的类型,以规定或说明应如何对其规范的特殊问题。其次为在与有过失有关之法律关系的发展,受害人在契约责任、危险责任及侵权责任应如何为其使用人及代理人之故意或过失行为负责。特别是未成年人是否应为其法定代理人之侵权责任负责?另其适用之赔偿责任的规范基础是否含侵权责任、契约责任及危险责任。再则与有过失所指涉之损害分担的基础应当是其行为或负责因素之原因力或过失程度?这些问题,在现代民法经过一个世纪以上之发展,学说见解依然尚有见仁见智的不同看法,需要究诸实际案例,逐步发展。

It is a simple truth to reduce the obligation of damage compensation of the injuring party because of contributory negligence of the injured party,but it is difficult to practice satisfactorily according to norms for the time being.The first question encountered in its normalization is whether the injured should be legally obliged to protect their own interests,which involves the existence and scope of such obligation.Thus,a type of legal relationship of"obligation to oneself"needs to be developed,so as to specify or explain to the special problem of how to normalize it.Secondly,in the development of legal relationship relevant to contributory negligence,how the injured should be responsible for the intentional or negligent acts of their users and agents in terms of contractual liability,risk liability and tort liability?In particular,should minors be responsible for the tort liability of their legal representatives?In addition,does the normative basis of its applicable liability include tort liability,contractual liability and risk liability?What's more,should the basis of sharing the damage involved in negligence be the causal force or degree of negligence of their behavior or responsible factors?After more than a century of development in modern civil law,there are still different views on these questions,which need to be studied through practical cases and developed gradually.