美国侵权法中的因果关系理论
发布时间：2019-06-21 02:40
【摘要】： 随着现代科技的飞速发展,因果关系的复杂性推到了极致,从而大大增加了因果关系认定的难度。按美国法因果关系判断的通说,采取“两分法”：事实上的因果关系和法律上的因果关系。事实上的因果关系是用于探讨被告行为是否实际上为损害发生的原因,若没有被告的行为,损害是否仍将发生；而法律上的因果关系是属于法律政策的考量,主要是以限制被告责任来达到公平、正义、社会需求以及法律规范的目的。 事实上的因果关系又称事实原因,许多学者试图给事实原因下一个确切的定义,或者描述它所服务的侵权行为法律目的。马龙和格林是其中最为成功的,他们的学说成为了当代美国侵权行为法的基础。格林教授提出“义务—危险分析”理论,将广义的因果关系被分为两部分：事实原因(狭义的因果关系)和义务。虽然同为义务—危险分析的拥护者,马龙不同意格林事实原因的分析以及他的推论,马龙认为因果关系并非纯粹的事实问题,它需要政策的介入。两者最大的区别在于事实原因是否包括政策因素。笔者认为完全将价值判断从事实中剥离出来是不现实的,但是格林的分离原因理论是一个有效的分析工具,有利于实践操作。这不是让实验者们忽视政策的限制,而是说政策和事实应该被分开,事实上的因果关系应该绝对地避免政策的介入。 事实原因的判断标准包括：第一,“若无,则不”规则即美国法上的"but for rule",也称为必要条件理论。是指“若无被告的行为(作为或不作为),则损害将不会发生,该行为即为损害的原因。反之,若无被告的行为,损害仍会发生,则被告的行为并非损害的原因。”第二,实质因素理论,是指“被告的侵权行为对于损害的发生必须为一项实质因素,如果即使行为人不存在过失,该伤害也会发生,则行为人的过失行为不是造成他人受伤害的实质因素。”第三,复合原因理论,也称为充分条件的必要因素理论。所谓充分条件是指复合原因互相作用而导致了损害结果的发生,但任何一个原因对于结果的发生仅为可能性。如甲乙共同作用而导致了丙,分开来看甲可能但不一定引起丙,乙可能但不一定引起丙,但甲乙共同作用则导致了丙这一结果的产生。第四,市场份额理论,这一理论适用于产品责任,若原告能证明造成其损害的产品出自某个制造商时,该制造商即成立侵权责任。但如果生产同类产品的制造商过多导致原告无法确定特定的制造商时,美国多数法院的方法是按照该产品各个制造商所占市场份额来确认责任。第五,减少有利机会理论,该理论专门适用于医疗纠纷案件,是实质因素理论的一个分支。 法律上的因果关系又称最近原因,该理论为责任设立了边界。虽然对其定义仍然众说纷纭,但是对它的准确理解至少应当包含以下内容：第一,近因必为事实原因的一部分,也就是说要为近因必须先满足事实原因的判断准则；第二,近因必包含有价值判断,该价值判断主要是指对于美国侵权行为法法律政策的考量,并且这一考量贯穿始终,是最根本的内容；第三,由法律政策考量而衍化出的近因判断准则。 法律政策是指同公共利益和社会根本问题相关,本质上反映了社会或团体的总体目标,目的是使团体成员的社会、经济或政治福利得以整体提升,即使这样可能会导致对个人权利的限制,政策也会被贯彻。本文从法律责任的不同根据；限制责任的那些因素；诉讼中因果关系问题的表达程式；对这样的事项证明责任的负担几个方面论述政策影响责任的方法。 最近原因的判断标准分为：第一,直接结果规则,也称直接原因规则,包含两层意思：①行为人只对直接引起损害结果的行为负责,这意味着行为和结果之间不能有替代因素出现；②只要该行为直接引起损害后果,无论该结果是否可以预见,该行为都是损害结果发生地近因。直接结果规则现在多用于故意侵权案件,其他案件中大部分法院在考量因果关系和确认责任时还是以可预见性规则为标准。第二,可预见性规则,指行为人作为有正常智力和谨慎的人应当合理地预见到它的过失行为会造成对他人的危险(无论是由于事件或类似情况造成),行为人自己相信会发生什么或行为人预见由于他造成的危险情况会造成怎样的损害,则不予考虑,不法行为人不对只是可能产生的结果承担责任,而只对依普通或通常经验判断可能产生的结果承担责任。本文从可预见性规则的内容及意义、在审判实践中的运用、在介入原因中的作用三方面分别论述。 要讨论近因就不得不提到远因,近因理论相当于在众多事实原因中对选出符合其标准的法律原因,也即对责任进行限制,而远因原则则相当于在近因原则的基础上进一步限制责任。远因原则的基础为普通法系的无过错即无责任原则,其顾名思义即为某一行为相较于那个“最近的”原因对于损害结果是间接的、不可预见的、“遥远的”,实质是在近因原则排除的基础之上,对于侵权责任作出进一步的限制,再通过价值判断等方式排除其认定为“遥远的”联系,最终得出最近的法律上的原因。该原则是法律政策在因果关系理论中的集中体现,其对政策的选择主要体现在排除独立的介入因素(原告所受损害与被告行为之间)、避免对同一损害进行多重赔偿、避免过于大量的诉讼、排除间接经济损失四方面,另外本文还通过“不受欢迎的被告”作为实际案例分析上诉四方面。 最后,本文提出美国法中因果关系理论的两分法、事实原因和法律原因的判断标准、远因原则对于法律政策的选择等对我国的借鉴意义。
[Abstract]:With the rapid development of modern science and technology, the complexity of causality has been pushed to the extreme, which greatly increases the difficulty of the causality determination. ""two-way method": the de facto causality and the causal relationship in the law," he said in accordance with the U.S. law. The fact that the causal relationship is used to investigate whether the defendant's behavior is actually the cause of the damage, and if there is no defendant's conduct, the damage will still occur; and the legal causal relationship is the consideration of the legal policy, mainly to limit the defendant's responsibility to achieve fairness and justice, The purpose of the social needs and the legal norms. In fact, the cause of the causal relationship is also known as the fact that many scholars try to give the facts the exact definition, or describe the tort law it serves. The purpose of the law is that Marlon and Green are the most successful, and their doctrine has become a contemporary American tort law. On the basis of Professor Green's theory of "The risk analysis of the obligation", the general causal relationship is divided into two parts: the fact causes (the narrow causal relationship) As an advocate of the risk analysis of the obligation, Marlon does not agree with the analysis of the cause of the fact of Green's facts and his reasoning that the causality is not a purely factual issue and that it needs a policy The greatest difference between the two lies in the fact that the fact is that the cause of the fact is political The author thinks that it is not realistic to judge the value of the value from the fact, but the theory of the separation of Green is an effective analytical tool, which is beneficial to the real This is not to let the experimenter ignore the limits of the policy, but to say that the policies and the facts should be separated, and the de facto causality should definitely avoid the policy The criteria for judging the facts of the fact include: first, if none, then no rule is the "cut for rule" in the United States, and also said As a necessary condition, the theory of the second and the essential factors of the "If there is no defendant's act (act or omission), the damage will not occur and the act is the cause of the damage. On the other hand, if there is no defendant, the damage will still occur, and the defendant's conduct is not the cause of the damage." refers to the third and the compound cause theory of the "The defendant's violation must be a substantial factor in the occurrence of the damage, and if the perpetrator does not have the fault, the injury will also take place, and the fault of the actor is not a substantial factor in the harm of others.", which is also called the sufficient condition The necessary factor theory. The so-called sufficient condition means that the compound causes the occurrence of the damage result, but any one reason is for the result. The occurrence is only the possibility. For example, the common action of the methyl ethyl group leads to the fact that the A and B may, but not necessarily cause, the C, B may, but not necessarily cause, C, but the common action of the methyl ethyl group results in the C. Fourth, market share theory, this theory is applicable to product liability, if the plaintiff can prove that the product that caused the damage is from a manufacturer, the manufacturer The creation of a tort liability. However, if the manufacturer of the same type of similar product causes the plaintiff to be unable to determine the particular manufacturer, the method of most of the courts in the United States is in accordance with the market of the various manufacturers of the product Share to confirm responsibility. Fifth, reduce the theory of favorable opportunity, which is applicable to medical disputes, and is a real factor. A branch of the theory. The causality of the law is also known as the most recent reason. The theory is the responsibility to set up a boundary. Although the definition of the boundary is still numerous, its precise understanding should at least include the following: first, the near-cause must be part of the fact, that is, it is a criterion for judging the fact that the fact must first be met; and secondly, Because of the value judgment, the value judgment mainly refers to the consideration of the law policy of the American tort law, and the consideration is the most fundamental content throughout the time; and thirdly, it is considered by the legal policy The law policy, which is related to the public interest and the fundamental problem of the society, essentially reflects the overall objective of the society or group, and the purpose is to make the social, economic or political well-being of the members of the group be promoted as a whole, even if the social, economic or political welfare of the group is promoted as a whole. This may result in a pair of The restriction of the individual's rights and the policy will also be carried out. This article is based on the different basis of the legal responsibility, the factors which limit the responsibility, the expression of the cause and effect in the litigation, and the burden of the responsibility for such matters. Several aspects of the method of policy influence responsibility are discussed. The criteria for judging the most recent reason are: first, the direct result rule, and the direct cause rule, which includes two layers: the perpetrator only is responsible for the act directly causing the damage result, means that there is no substitute for the act and the result, and as long as the act directly causes the consequences of the damage, whether or not the result is It is foreseen that the act is the near result of the damage result. The direct result rule is now used for intentional tort cases, and most of the other cases are considering the cause and effect The rule of predictability is the standard of the rule of predictability. The second, the rule of predictability, means that the actor, as a person with normal intelligence and care, should reasonably see that the act of the fault would cause the harm to others. (whether due to an incident or a similar situation), the perpetrator himself is confident that what is going to happen or what the perpetrator can foresee as a result of his or her dangerous situation will not be taken into account, and that the wrongdoer is not liable for the consequences that may arise, but only to the Epp The responsibility of the result of a judgment that is likely to be produced. This article, from the content and meaning of the rules of predictability, is in the practice of the trial. The three aspects of the application and the effect of the intervention are discussed separately. The close cause of the discussion has to be mentioned, and the near-cause theory is equivalent to the legal reasons for the selection of the criterion in many facts, namely, the limitation of the responsibility, and far from the other. The principle is equivalent to the further limitation of the liability on the basis of the principle of near-law. The principle is based on the principle of no fault of the common law system, that is, the principle of no responsibility, and its name implies that the result of the damage is indirect and unforeseeable for a certain behavior compared with that of the "most recent". ", in essence, on the basis of the exclusion of the principle of the near-cause, further limitation on the liability of the infringement, and the determination as" trunk>" farway by means of value judgment or the like. " contact, resulting in the most recent legal reasons. The principle is the reflection of the legal policy in the theory of causality, and its choice of policy is mainly reflected in the exclusion of independent intervention factors (between the injury of the plaintiff and the act of the defendant), Avoid multiple compensation for the same damage, avoid excessive litigation, and eliminate the four aspects of indirect economic loss. Ant " is the four aspects of the analysis of the actual case. In the end, this paper puts forward the two-method, the fact and the legal reason for the theory of causality in the American law.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2
本文编号：2503720
[Abstract]:With the rapid development of modern science and technology, the complexity of causality has been pushed to the extreme, which greatly increases the difficulty of the causality determination. ""two-way method": the de facto causality and the causal relationship in the law," he said in accordance with the U.S. law. The fact that the causal relationship is used to investigate whether the defendant's behavior is actually the cause of the damage, and if there is no defendant's conduct, the damage will still occur; and the legal causal relationship is the consideration of the legal policy, mainly to limit the defendant's responsibility to achieve fairness and justice, The purpose of the social needs and the legal norms. In fact, the cause of the causal relationship is also known as the fact that many scholars try to give the facts the exact definition, or describe the tort law it serves. The purpose of the law is that Marlon and Green are the most successful, and their doctrine has become a contemporary American tort law. On the basis of Professor Green's theory of "The risk analysis of the obligation", the general causal relationship is divided into two parts: the fact causes (the narrow causal relationship) As an advocate of the risk analysis of the obligation, Marlon does not agree with the analysis of the cause of the fact of Green's facts and his reasoning that the causality is not a purely factual issue and that it needs a policy The greatest difference between the two lies in the fact that the fact is that the cause of the fact is political The author thinks that it is not realistic to judge the value of the value from the fact, but the theory of the separation of Green is an effective analytical tool, which is beneficial to the real This is not to let the experimenter ignore the limits of the policy, but to say that the policies and the facts should be separated, and the de facto causality should definitely avoid the policy The criteria for judging the facts of the fact include: first, if none, then no rule is the "cut for rule" in the United States, and also said As a necessary condition, the theory of the second and the essential factors of the "If there is no defendant's act (act or omission), the damage will not occur and the act is the cause of the damage. On the other hand, if there is no defendant, the damage will still occur, and the defendant's conduct is not the cause of the damage." refers to the third and the compound cause theory of the "The defendant's violation must be a substantial factor in the occurrence of the damage, and if the perpetrator does not have the fault, the injury will also take place, and the fault of the actor is not a substantial factor in the harm of others.", which is also called the sufficient condition The necessary factor theory. The so-called sufficient condition means that the compound causes the occurrence of the damage result, but any one reason is for the result. The occurrence is only the possibility. For example, the common action of the methyl ethyl group leads to the fact that the A and B may, but not necessarily cause, the C, B may, but not necessarily cause, C, but the common action of the methyl ethyl group results in the C. Fourth, market share theory, this theory is applicable to product liability, if the plaintiff can prove that the product that caused the damage is from a manufacturer, the manufacturer The creation of a tort liability. However, if the manufacturer of the same type of similar product causes the plaintiff to be unable to determine the particular manufacturer, the method of most of the courts in the United States is in accordance with the market of the various manufacturers of the product Share to confirm responsibility. Fifth, reduce the theory of favorable opportunity, which is applicable to medical disputes, and is a real factor. A branch of the theory. The causality of the law is also known as the most recent reason. The theory is the responsibility to set up a boundary. Although the definition of the boundary is still numerous, its precise understanding should at least include the following: first, the near-cause must be part of the fact, that is, it is a criterion for judging the fact that the fact must first be met; and secondly, Because of the value judgment, the value judgment mainly refers to the consideration of the law policy of the American tort law, and the consideration is the most fundamental content throughout the time; and thirdly, it is considered by the legal policy The law policy, which is related to the public interest and the fundamental problem of the society, essentially reflects the overall objective of the society or group, and the purpose is to make the social, economic or political well-being of the members of the group be promoted as a whole, even if the social, economic or political welfare of the group is promoted as a whole. This may result in a pair of The restriction of the individual's rights and the policy will also be carried out. This article is based on the different basis of the legal responsibility, the factors which limit the responsibility, the expression of the cause and effect in the litigation, and the burden of the responsibility for such matters. Several aspects of the method of policy influence responsibility are discussed. The criteria for judging the most recent reason are: first, the direct result rule, and the direct cause rule, which includes two layers: the perpetrator only is responsible for the act directly causing the damage result, means that there is no substitute for the act and the result, and as long as the act directly causes the consequences of the damage, whether or not the result is It is foreseen that the act is the near result of the damage result. The direct result rule is now used for intentional tort cases, and most of the other cases are considering the cause and effect The rule of predictability is the standard of the rule of predictability. The second, the rule of predictability, means that the actor, as a person with normal intelligence and care, should reasonably see that the act of the fault would cause the harm to others. (whether due to an incident or a similar situation), the perpetrator himself is confident that what is going to happen or what the perpetrator can foresee as a result of his or her dangerous situation will not be taken into account, and that the wrongdoer is not liable for the consequences that may arise, but only to the Epp The responsibility of the result of a judgment that is likely to be produced. This article, from the content and meaning of the rules of predictability, is in the practice of the trial. The three aspects of the application and the effect of the intervention are discussed separately. The close cause of the discussion has to be mentioned, and the near-cause theory is equivalent to the legal reasons for the selection of the criterion in many facts, namely, the limitation of the responsibility, and far from the other. The principle is equivalent to the further limitation of the liability on the basis of the principle of near-law. The principle is based on the principle of no fault of the common law system, that is, the principle of no responsibility, and its name implies that the result of the damage is indirect and unforeseeable for a certain behavior compared with that of the "most recent". ", in essence, on the basis of the exclusion of the principle of the near-cause, further limitation on the liability of the infringement, and the determination as" trunk>" farway by means of value judgment or the like. " contact, resulting in the most recent legal reasons. The principle is the reflection of the legal policy in the theory of causality, and its choice of policy is mainly reflected in the exclusion of independent intervention factors (between the injury of the plaintiff and the act of the defendant), Avoid multiple compensation for the same damage, avoid excessive litigation, and eliminate the four aspects of indirect economic loss. Ant " is the four aspects of the analysis of the actual case. In the end, this paper puts forward the two-method, the fact and the legal reason for the theory of causality in the American law.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2
【参考文献】
相关期刊论文 前2条
1 王学梅;美国侵权法上的“最近原因”理论[J];黑龙江省政法管理干部学院学报;2003年06期
2 吕彦;美国侵权行为法判断因果关系的规则与实践[J];现代法学;1998年06期
，本文编号：2503720
本文链接：https://www.wllwen.com/falvlunwen/fashilw/2503720.html
