违约与侵权责任竞合问题研究
发布时间：2018-07-25 18:08
【摘要】：责任竞合是一项法律制度，而不是客观现象。责任竞合源于法律规范的并存与冲突。从本质上说，责任竞合是一项旨在解决各个并存着的规范之间冲突的法律制度。违约与侵权责任的竞合问题是责任竞合研究领域中的核心内容。现有的责任竞合学说以法条竞合说、请求权竞合说（包括自由竞合说与相互影响说）、请求权规范竞合说为代表性学说，但是这三种学说均存在一定的缺陷和不足：我国《合同法》与《侵权责任法》不存在天然位阶，因此没有法条竞合说的适用土壤；请求权自由竞合说以两个请求权相互独立、择一行使为前提，但是无法照顾到特殊规范背后的立法目的，而请求权相互影响说又使得原本相互独立的两个请求权名存实亡；请求权规范竞合说虽然赞同者日增，但是也存在不足：第一，其对实体请求权概念的改造违背私法体系化精神；第二，在诉讼上使法官的裁判难度剧增，有突袭裁判之嫌；第三，，各个规范之间的真正目的难以探求，究竟何为真正规范目的，持规范竞合说的学者之间也各执一词。 现有学说的上述缺陷，引发了我们诸多思考，并激发了我们对责任竞合制度的更深层次的研究热情。从我国现行法条来看，我国《合同法》第122条首次以立法的形式规定了责任竞合制度，承认两个独立请求权的并存，并且赋予当事人选择权，可择一行使。但是这一做法的缺陷也显而易见：一是有违特殊立法目的，二是制造讼累。 为弥补上述制度缺陷，单纯在实体法内部寻找路径较难全面解决责任问题，如果能够结合民事程序法的制度和理论，或许效果更佳。因此我们应当构建如下一套责任竞合制度：首先判断诸规范中是否存在特殊规范（或特殊立法目的），若两者都是一般规范或都是特殊规范，则构成真正的竞合，采请求权自由竞合理论；若只有其中之一的请求权涉及到特别规范，那么该特别规范排除一般规范的适用，采禁止竞合模式。这一构想既照顾到了规范背后的特殊立法目的，又尊重和维护了民法请求权体系上的完整。此外，责任竞合制度还应同时附以如下配套措施：一是在违约责任中有条件地引入精神损害赔偿制度，以弥补违约责任赔偿范围不全面之缺陷；二是引入民事诉讼法上的“诉的预备性合并”制度，以避免请求权在自由竞合时的二次诉讼。
[Abstract]:Liability competing is a legal system, not an objective phenomenon. Liability competition is derived from the coexistence and conflict of legal norms. In essence, liability competition is a legal system aimed at solving the conflict between the coexisting norms. The competition of breach of contract and tort liability is the core content of the research field of liability competition. The doctrine of Coopetition in the doctrine of legal competition, the concurrence of the right of claim (including the theory of free concurrence and mutual influence), the standard of claim of the right of claim is representative theory, but there are some defects and shortcomings in all three theories: there is no natural rank in the contract law of China and the law of tort liability in China, so there is no applicable soil for the coopetition of the law. The right of claim is free and concurrence that the two claims are independent and optional, but it can not take care of the legislative purpose behind the special norms, and the mutual influence of the claim makes the two claims of the original mutually independent. The reform of the concept of the right to the entity is contrary to the spirit of the system of private law; second, it makes the judge's judgment difficulty increasing, and it has the suspicion of raiding the referee; third, the real purpose between the various norms is difficult to seek, what is the true purpose of the standard, and the scholars with the standard of competition are also different.
The above defects of the existing doctrines have caused us a lot of thinking and aroused our deeper research enthusiasm for the system of liability competing. From the current law article of our country, the 122nd article of contract law of our country stipulates the system of liability competing for the first time in the form of legislation, acknowledges the coexistence of the two independent claims and gives the parties the right to choose. It can be exercised selectively. However, the defects of this practice are obvious: first, it violates the purpose of special legislation, and the two is to create litigation fatigue.
In order to make up the defects of the above system, it is difficult to solve the problem of responsibility in the entity law simply. If it can be combined with the system and theory of the civil procedure law, it may be better. Therefore, we should build the following set of liability competing system: first judge whether there are special norms in the norms (or special legislative purposes), if we are in the first place. Both are general norms or are special norms, which constitute a true concurrence and claim the theory of the right of freedom of concurrence. If only one of the claims involves special norms, then the special norm excludes the application of general norms and prohibits the mode of competition. This concept not only takes care of the special legislative purposes behind the norms, but also respects the special legislative purpose behind the standard. In addition, the system of liability competition should also be attached with the following supporting measures: first, it is necessary to introduce the system of mental damage compensation in the liability of breach of contract, in order to make up for the incomplete defects of the liability for breach of contract, and two is to introduce the system of "preparatory merger of litigation" in the civil procedure law. In order to avoid the two lawsuit when the right of claim is free.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
本文编号：2144614
[Abstract]:Liability competing is a legal system, not an objective phenomenon. Liability competition is derived from the coexistence and conflict of legal norms. In essence, liability competition is a legal system aimed at solving the conflict between the coexisting norms. The competition of breach of contract and tort liability is the core content of the research field of liability competition. The doctrine of Coopetition in the doctrine of legal competition, the concurrence of the right of claim (including the theory of free concurrence and mutual influence), the standard of claim of the right of claim is representative theory, but there are some defects and shortcomings in all three theories: there is no natural rank in the contract law of China and the law of tort liability in China, so there is no applicable soil for the coopetition of the law. The right of claim is free and concurrence that the two claims are independent and optional, but it can not take care of the legislative purpose behind the special norms, and the mutual influence of the claim makes the two claims of the original mutually independent. The reform of the concept of the right to the entity is contrary to the spirit of the system of private law; second, it makes the judge's judgment difficulty increasing, and it has the suspicion of raiding the referee; third, the real purpose between the various norms is difficult to seek, what is the true purpose of the standard, and the scholars with the standard of competition are also different.
The above defects of the existing doctrines have caused us a lot of thinking and aroused our deeper research enthusiasm for the system of liability competing. From the current law article of our country, the 122nd article of contract law of our country stipulates the system of liability competing for the first time in the form of legislation, acknowledges the coexistence of the two independent claims and gives the parties the right to choose. It can be exercised selectively. However, the defects of this practice are obvious: first, it violates the purpose of special legislation, and the two is to create litigation fatigue.
In order to make up the defects of the above system, it is difficult to solve the problem of responsibility in the entity law simply. If it can be combined with the system and theory of the civil procedure law, it may be better. Therefore, we should build the following set of liability competing system: first judge whether there are special norms in the norms (or special legislative purposes), if we are in the first place. Both are general norms or are special norms, which constitute a true concurrence and claim the theory of the right of freedom of concurrence. If only one of the claims involves special norms, then the special norm excludes the application of general norms and prohibits the mode of competition. This concept not only takes care of the special legislative purposes behind the norms, but also respects the special legislative purpose behind the standard. In addition, the system of liability competition should also be attached with the following supporting measures: first, it is necessary to introduce the system of mental damage compensation in the liability of breach of contract, in order to make up for the incomplete defects of the liability for breach of contract, and two is to introduce the system of "preparatory merger of litigation" in the civil procedure law. In order to avoid the two lawsuit when the right of claim is free.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
【参考文献】
相关期刊论文 前2条
1 谭甄;边秋燕;;请求权竞合的若干问题研究[J];研究生法学;1999年03期
2 章晓洪;请求权竞合时诉讼标的识别标准新思考[J];浙江大学学报(人文社会科学版);2004年06期
本文编号：2144614
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