侵权过失相抵规则中的“过失”研究

Research on the Negligence in the Rule of Comparative Negligence

对过失相抵规则中“过失”的判断应当采用较为客观的善良管理人注意义务这一标准,即具有一般知识与经验的人诚实地处理事务时所应当具有的状态。在过失与重大过失之外,我国司法审判实践中还存在着一种更轻程度的过失即违反对己义务的过失。过失相抵规则在侵权领域的适用具有正当性与必要性,在适用过失相抵规则的各比较因素中,比较双方过错程度这一因素更具合理性。

The judgments of negligence should use the standard of a good man’s duty of care,that is,the state that a person with general knowledge and experience should have when honestly dealing with affairs.In addition to negligence and gross negligence,there is also a lighter degree of negligence in judicial practice,which is negligence in violation of one’s own obligations.From the both perspectives of being responsible for the consequences of damage caused by one’s own negligence and the causality between one’s own actions and the consequences of damage,it is sufficient to provide legitimacy and reasonableness for the application of the Rule of Comparative Negligence.Among the various comparison factors of negligence,it is more reasonable to compare the degree of negligence of both parties.