协同理论下高空抛物法律治理模式之再完善

Improvement of the Legal Governance Model for Throwing Objects from Height Under the Collaborative Theory

高空抛物之法律治理已实现分散治理向协同治理的转型。前者以“侵权+补偿”之双层责任体系保障受害人的民事权利,后者则以《民法典》上公安机关调查职责等关联性条款的设置为肇端。但受到公私法理念对立、民事单行法思维和实用主义调整思路等因素影响,协同治理模式拘泥于各部门法的个别优化,缺乏对协同观念与方案的理论关照,从而导致不同部门法之间各自为政且相互掣肘。鉴此,宜从整体和部分两个方面展开反思与完善,以协同共治理念为指引,妥善确定各部门法治理的逻辑关系及其效力范围。具体而言,一要强调可能加害人补偿责任的限制适用;二要推动高空抛物防治义务向公法属性回归,构建行政机关主导的多层次救助体系;三需对“高空抛物罪”构成要件的解释保持谦抑。

The legal governance of throwing objects from height has transformed from decentralized governance to collaborative governance.The former protects people’s civil rights with the double-layer liability system of“infringement and compensation”,while the latter starts with the establishment of relevant clauses such as the investigation duty of public security organs in the Civil Code.However,under the influence of the opposite concept of public and private laws,the approach of special legislation for civil law and the pragmatic adjustment,the collaborative governance mode is confined to the individual optimization of each department law,paying no attention to the collaborative concept and plan,which leads to separate governance and constraints between different departments.Thus,reflection and improvement should be made in both the parts and the whole,guided by the concept of cooperative governance,with the logical relationship and the scope of effectiveness of the law governance between each department properly determined.Specifically,first,we should emphasize the applicability of the limitation of compensation liability for the possible perpetrator.Second,we should promote the return of the prevention and control obligation to public law,and build a multi-level rescue system led by administrative organs.Third,the interpretation of the constitutive elements of“throwing objects from height”should be modest.