法律责任概念的反思与重构

Reflection and Reconstruction of the Concept of Legal Responsibility

虽然中国学界既有的法律责任概念存在不足,但“违法者在法律上必须受到惩罚或者必须作出赔偿”的表述依然在经验事实层面和规范分析层面是不周延的。难以涵盖部门法领域中复杂多样的责任形态是当下法律责任概念的主要缺陷。既有的法律责任概念对民事责任领域的特殊情形关注不够;不注意区分刑事和民事两个领域中责任形态的差异,由此导致概念的归纳和构成要件的提炼不准确、不周延;对刑法及行政法中责任理论的新发展关注不够。新的概念不是将法律责任定义为某主体应该承担的不利后果,而是将之定义为让某主体承担不利后果的依据。新概念对部门法中复杂的责任理论和形态具有更为全面的解释力,也更符合现代社会保护公民权益的基本价值取向。

Although the existing concept of legal responsibility is insufficient, the expression of‘ offenders have to be punished or make compensation in law’ is still not undistributed in the factual and normative level. The main defect of the concept of legal responsibility is that it cannot cover the complicated and diverse forms of legal responsibility in the departmental law. In addition, special tort and other special civil responsibility have not been paid much attention to from the existing concept of legal responsibility. Moreover, the unawareness of differences of responsibility forms in criminal and civil fields leads to the inaccurate and undistributed induction of concepts and extraction of constitutive elements. Finally, the new development of responsibility theory in criminal law and administrative law has not been underlined. This study argues that the new concept of legal responsibility should not been defined as the adverse consequences that a subject should bear, but the basis for a subject to bear the adverse consequences. The new concept has a more comprehensive explanatory power to the complex theory and form of responsibility in the departmental law, and is more in line with the basic value orientation of protecting citizens’ rights and interests in modern society.