因帮助他人而受害的私法救济——以江歌案民事一审判决为例的考察

Private Law Remedies for Victims Affected by Helping Others——A Case Study of First Instance Judgment of Jiang Ge Case as an Example

“江秋莲诉刘暖曦案”的事实特征是“因帮助他人而受害”。相关私法救济途径主要有两个:一是以情谊行为、见义勇为、紧急救助、无因管理为代表的合同导向式救济。其存在不同程度的自由意志因素,描述了法律事实的全貌,践行了社会主义核心价值观,便于向被帮助人主张权利,却不利于一次性解决三方主体的全部纠纷。二是围绕陈世峰的杀害行为和刘暖曦的未予救助行为的侵权救济。对不作为侵权的归责聚焦于行为人有无作为义务,存在因果关系难题,不同要件之间高度融合,进而导致阶层式构成要件理论的失灵,归责不得不过度倚重价值判断。为避免任意归责,有必要参考合同导向救济判定侵权救济中的积极义务、确定责任形态和责任范围。不作为和作为结合的侵权责任有连带责任、按份责任、补充责任,其中补充责任为原则。责任份额的确定应以原因力为主,兼顾过错程度。

The character of the fact of “Jiang Qiulian v. Liu Nuanxi” is that “harmed by helping others”. There are two main types of civil legal remedies: firstly, contract-oriented remedies represented by friendship behavior, good samaritan act, emergency rescue and voluntary service. There are varying degrees of free will elements, which describe the full picture of the legal facts in a positive light and fully reflect the high importance attached to the core socialist values;it facilitates the obtaining of relief from the person being helped, but is not conducive to resolving all disputes among the three subjects at once. The second is that tort relief surrounding Chen Shifeng’s killing and Liu Nuanxi’s failure to render assistance. The tort of omission focuses on the existence of a duty to act and has the existence of causation problems, and the high degree of integration between the different elements, thus contributing to the failure of the three-tier theory of constituent elements and the over-reliance on value judgments for imputation. In order to avoid arbitrariness in imputation, it is necessary to refer to contract-oriented remedies to determine the positive obligations in tort remedies, the form of tort liability and the scope of liability. The forms of tort liability that combine omission and commission are joint and several liability, contributory liability and supplementary liability, of which supplementary liability is the principle. The share of liability should be determined by the predominance of causation, taking into account the degree of fault.