论美国侵权法上的“特殊关系”
发布时间：2018-10-16 13:48
【摘要】：随着人们之间接触的日益频繁化以及社会风险的日渐加大,出现了一些新型的不作为侵权案件。但我国现有法律没有对这些情况作出明确的规定,从而导致了不同的法院甚或同一法院对相类似的案件作出不同判决的情形。要使行为人承担不作为责任,首先要确定的是其存在作为义务。而我国现有作为义务来源已经无法满足司法实践的需求,所以有必要对作为义务来源进行扩张。美国侵权法上的特殊关系理论为我们指明了一条道路,该理论成为作为义务的来源已经有一百多年的历史,美国学术界与理论界对其进行了广泛而深入的研究。然而我国学者却对特殊关系理论研究甚少,为了适应现代侵权法的发展趋势,为了解决现实中不断出现的新型不作为侵权案件,我们有必要对特殊关系理论进行研究。 本文共分为五个部分进行论述。第一部分主要介绍了特殊关系的概念、类型、特征以及与其它几种作为义务来源的区别。 第二部分与第三部分主要介绍了特殊关系的历史演变以及演变的社会背景分析。美国侵权法上的特殊关系起源于中世纪英国法院的间接侵害赔偿之诉令状。到十九世纪末,随着注意义务的形成、作为与不作为的区分以及受美国社会人本主义哲学观、社会结构改变、道德法律化运动以及一些极端案例产生的不良社会效果的影响,特殊关系理论制度正式形成。美国《侵权法重述》以成文法的形式确立了特殊关系制度,并进行了类型化的规定,为司法实践提供了具体的指导。 第四部分主要介绍了基于特殊关系为何能产生作为义务以及义务的类型。特殊关系能够产生作为义务,其理由有以下四点：1.可预见性。2.机会损失。3.自我保护能力的降低。4.实施作为义务的地位。因特殊关系产生的作为义务主要有：保护义务、控制义务、救助义务、警告义务以及检查义务等。特殊关系的判断标准主要存在四种学说：控制能力说、合理负担说、信赖说以及公共政策说。 第五部分主要介绍了我国目前作为义务立法的不足以及特殊关系对我国作为义务立法的启示。根据《民法通则》、《侵权责任法》等法律法规以及相关的司法解释,我国的作为义务来源主要包括法律规定、先行行为、合同约定、安全保障义务。现有作为义务法律制度存在义务来源有限、不成体系化以及作为义务主体有限、保护对象不明等不足。通过对美国侵权法上的特殊关系理论的借鉴,我们可以在立足于现有理论的前提下引进特殊关系理论,不但可以解决司法实践中的那些新型不作为侵权案件,而且可以扩张作为义务来源；在保留安全保障义务的基础上,将特殊关系规定为其来源；在扩张作为义务人和明确保护对象的基础上,将作为义务进行类型化规定；在第三人侵权情况下应规定作为义务人承担连带责任。
[Abstract]:With the increasingly frequent contact between people and the increasing social risks, there are some new cases of omission infringement. However, the existing laws of our country do not make clear provisions on these cases, which leads to different judgments of similar cases by different courts or even by the same court. In order to make the actor bear the responsibility of omission, the first thing to be determined is the obligation of existence. However, as a source of obligation, our country can not meet the needs of judicial practice, so it is necessary to expand as a source of obligation. The theory of special relationship in American tort law shows a way for us. It has been a source of obligation for more than one hundred years and has been studied extensively and deeply by American academic and theoretical circles. However, in order to adapt to the development trend of modern tort law and solve the new type of tort cases, it is necessary for us to study the special relationship theory in order to adapt to the development trend of modern tort law. This article is divided into five parts to discuss. The first part mainly introduces the concept, types, characteristics and differences from other sources of obligation. The second part and the third part mainly introduce the historical evolution of the special relationship and the social background analysis of the evolution. The special relationship in American tort law originates from the writ of indirect damages in medieval English courts. By the end of the nineteenth century, with the formation of the duty of care, the distinction between action and omission, and the influence of the American philosophy of humanism, the change of social structure, the movement of moral legalization, and the adverse social effects of some extreme cases, The system of special relation theory was formally formed. The restatement of Tort Law in the United States establishes the system of special relationship in the form of statutory law, and provides specific guidance for judicial practice. The fourth part mainly introduces why and the type of obligation based on special relationship. There are four reasons why special relationships can arise as obligations: 1. Predictability. 2. Opportunity loss. Reduction in self-protection. 4. The status of enforcement as an obligation. The obligations arising from special relationships include: duty of protection, obligation of control, obligation of rescue, duty of warning and obligation of inspection. There are four theories to judge the special relationship: the theory of control ability, the theory of reasonable burden, the theory of trust and the theory of public policy. The fifth part mainly introduces the deficiency of our country's current legislation of obligation and the enlightenment of the special relationship to our country's legislation of obligation. According to the General principles of Civil Law, Tort liability Law and other laws and regulations, as well as related judicial interpretation, the source of our country's obligations as a law mainly includes the provisions of the law, the first act, the contract agreement, the obligation of safety and security. The existing legal system of obligation has some shortcomings, such as limited source of obligation, non-systematization, limited subject of obligation and unclear object of protection, etc. By drawing lessons from the special relationship theory in American tort law, we can introduce the special relationship theory based on the existing theory, which can not only solve the new type of tort cases in judicial practice. On the basis of reserving the obligation of safety and security, the special relationship can be defined as the source, and on the basis of the expansion as the obligor and the object of protection, it will be classified as the obligation. In the case of infringement by the third party, it shall be stipulated that the obligor shall bear joint and several liability.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D971.2;DD913
本文编号：2274554
[Abstract]:With the increasingly frequent contact between people and the increasing social risks, there are some new cases of omission infringement. However, the existing laws of our country do not make clear provisions on these cases, which leads to different judgments of similar cases by different courts or even by the same court. In order to make the actor bear the responsibility of omission, the first thing to be determined is the obligation of existence. However, as a source of obligation, our country can not meet the needs of judicial practice, so it is necessary to expand as a source of obligation. The theory of special relationship in American tort law shows a way for us. It has been a source of obligation for more than one hundred years and has been studied extensively and deeply by American academic and theoretical circles. However, in order to adapt to the development trend of modern tort law and solve the new type of tort cases, it is necessary for us to study the special relationship theory in order to adapt to the development trend of modern tort law. This article is divided into five parts to discuss. The first part mainly introduces the concept, types, characteristics and differences from other sources of obligation. The second part and the third part mainly introduce the historical evolution of the special relationship and the social background analysis of the evolution. The special relationship in American tort law originates from the writ of indirect damages in medieval English courts. By the end of the nineteenth century, with the formation of the duty of care, the distinction between action and omission, and the influence of the American philosophy of humanism, the change of social structure, the movement of moral legalization, and the adverse social effects of some extreme cases, The system of special relation theory was formally formed. The restatement of Tort Law in the United States establishes the system of special relationship in the form of statutory law, and provides specific guidance for judicial practice. The fourth part mainly introduces why and the type of obligation based on special relationship. There are four reasons why special relationships can arise as obligations: 1. Predictability. 2. Opportunity loss. Reduction in self-protection. 4. The status of enforcement as an obligation. The obligations arising from special relationships include: duty of protection, obligation of control, obligation of rescue, duty of warning and obligation of inspection. There are four theories to judge the special relationship: the theory of control ability, the theory of reasonable burden, the theory of trust and the theory of public policy. The fifth part mainly introduces the deficiency of our country's current legislation of obligation and the enlightenment of the special relationship to our country's legislation of obligation. According to the General principles of Civil Law, Tort liability Law and other laws and regulations, as well as related judicial interpretation, the source of our country's obligations as a law mainly includes the provisions of the law, the first act, the contract agreement, the obligation of safety and security. The existing legal system of obligation has some shortcomings, such as limited source of obligation, non-systematization, limited subject of obligation and unclear object of protection, etc. By drawing lessons from the special relationship theory in American tort law, we can introduce the special relationship theory based on the existing theory, which can not only solve the new type of tort cases in judicial practice. On the basis of reserving the obligation of safety and security, the special relationship can be defined as the source, and on the basis of the expansion as the obligor and the object of protection, it will be classified as the obligation. In the case of infringement by the third party, it shall be stipulated that the obligor shall bear joint and several liability.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D971.2;DD913
【参考文献】
相关期刊论文 前1条
1 陈清;;英美法系侵权法上救助义务研究[J];河北法学;2012年07期
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