安全保障义务人侵权补充责任的理论反思

Theoretical Reflections on the Supplementary Liability of Tortfeasors Breaching Safety Protection Duty

安全保障义务人的侵权补充责任在实践中出现了诸多程序和实体问题,难以真正落地。问题的根源在于,补充责任是带有补偿义务元素的侵权责任,而侵权责任和补偿义务难以融合。补充责任的责任承担顺位性、责任范围补充性和追偿权均体现补偿义务元素,正是补偿义务元素使补充责任在实践中出现了诉讼形态选择僵局、同案不同判、判决内容不确定、难以执行等问题。第三人介入型安保义务人侵权属于无意思联络的数人侵权,应适用民法典第1172条的按份责任,“第三人故意+安保义务人过失”侵权也不例外,因为按份责任的份额系综合考量过错和原因力而定,在此过程中侵权人的过错已被评价。

The supplementary liability borne by persons breaching the safety protection duty is a major feature of Chinese civil law.However,it encounters many procedural and substantive obstacles in legal practice,making it difficult for this liability to be truly implemented.The root cause is that the supplementary liability is a tort liability incorporating remedy obligation,but tort liability and remedy obligation can hardly be integrated.The main characteristics of the supplementary liability,including the sequence of liability assumption,the supplementary nature of the scope of liability and the right to reimburse,are all closely related to the remedy obligation and they cause problems such as the dilemma in choosing the litigation form,different judgments in cases of the same kind,the uncertainty of judgment content,and the difficulty in enforcement.The person breaching the safety protection duty and the intervening third party are multiple tortfeasors without joint fault,who should therefore be held severally liable pursuant to Article 1172 of the Chinese Civil Code.Cases with a person negligently failing to fulfill his safety protection duty and an intentionally intervening third party are no exceptions,because the proportion of damages is determined by considering their comparative fault and causation,in which process their fault has already been evaluated.