欺诈侵权损害赔偿责任研究
发布时间：2018-08-12 12:54
【摘要】：欺诈,大陆法系又称为"诈欺",英美法上常称其为"虚假陈述",是指一方当事人故意隐瞒真实情况或者提供虚假情况,诱使对方当事人陷入错误并作出错误意思表示的行为。欺诈作为一种意思表示瑕疵,会导致民事行为被撤销或确认无效的法律效果,产生缔约过失损害赔偿责任。当欺诈给受欺诈方造成了实际损害后果时,亦具有构成侵权行为,导致侵权损害赔偿责任的可能性。随着社会经济的飞速发展,市场运行的道德风险递增,各种电信欺诈、网络欺诈等新型欺诈类型层出不穷,单一的合同法规制模式在欺诈损害赔偿救济方面的局限逐显。正确对欺诈所生之损失,尤其是其中的纯粹经济损失可否得到我国侵权法的救济这个问题进行回答,势在必行。目前理论界对欺诈侵权规制的主要反对点集中在法律体系平衡理论、优越法益理论、以及诉讼闸门理论三个方面。这些理论障碍在侵权法与合同法不断相互渗透的今天,可以通过侵权法内部价值位阶的相对性认知、责任竞合下当事人选择诉因理论的运用来加以解决。这既是涉及第三人欺诈时利益救济之必须,也在诉讼管辖、惩罚性赔偿的适用、损害赔偿的范围、与商事领域欺诈侵权规制相照应等方面具有欺诈缔约过失损害赔偿救济模式所不具备的优势。通观世界各国的立法现状,英美法系国家已将欺诈类型化为一种独立的侵权行为,形成了较为成熟的配套规制规则;大陆法系的国家和地区则更倾向于通过侵权法的一般条款,为欺诈提供侵权救济的可能性。我国现行的侵权法体系对这个问题采取了较为概括、模糊的态度,导致了理论界各种解释论众说纷纭,司法实践困境重重。应该肯定的的是,无论是通过比较解释、体系解释、文义解释,亦或是从缔约过失责任的角度、解释论的功能角度、司法实践的需求角度进行解读,均可确认我国现行的侵权法一般条款并没有将欺诈所生之纯粹经济损失排除在保护范围之外。此处的一般条款,只是提供一个可能的救济底线,在具体运用时,需要对欺诈侵权行为的构成要件进行进一步细化的解释限定,以期符合侵权法对于利益较之于权利更严格的保护标准。在对欺诈侵权损害赔偿救济模式进行明确解读的基础上,对于欺诈侵权法与合同法损害赔偿救济模式的协调,应肯定受欺诈方合同撤销权与损害赔偿请求权的并存,并赋予其行使时的选择权。同时,应通过类推解释的适用,区分是否撤销合同两种情形,对受欺诈方缔约过失损害赔偿请求权与侵权损害赔偿请求权的竞合作出不同的解释和处理。在受欺诈方不请求撤销合同时,《合同法》第42条所规定的缔约过失损害赔偿请求权与《侵权法》第6条所规定的侵权损害赔偿请求权均可作为诉因,由受欺诈方从中择一;在受欺诈方请求撤销合同时,其可在《合同法》第42条、《合同法》第58条、《侵权法》第6条中选择一条,作为欺诈损害赔偿请求权的基础,获得相应的救济。
[Abstract]:Fraud, also known as "fraud" in continental law system, is often referred to as "false statement" in Anglo-American law. It refers to the act of one party intentionally concealing the true situation or providing false information to induce the other party to fall into error and make a false declaration of will. Fraud, as a defective expression of will, will lead to the cancellation or invalidation of the civil act. With the rapid development of social economy, the moral hazard of market operation is increasing, various new types of fraud such as telecommunication fraud, network fraud and so on. The limitations of the single mode of contract law regulation in the remedy of compensation for fraudulent damages are becoming more and more obvious. It is imperative to answer the question of whether the losses caused by fraud, especially the pure economic losses, can be remedied by the tort law of our country. The theory of balance of legal system, the theory of superior legal interests, and the theory of litigation gate are three aspects. These theoretical obstacles can be solved by the relativity cognition of the internal value rank of the tort law and the application of the theory of the parties'choice of cause of action under the concurrence of liabilities, which involves the third party. The necessity of benefit relief in fraud is also in litigation jurisdiction, the application of punitive damages, the scope of damages, and the regulation of fraud infringement in the commercial field. This kind of independent tort has formed a relatively mature set of regulatory rules; the countries and regions of the continental law system are more inclined to provide tort remedies for fraud through the general provisions of the tort law. It should be affirmed that the current general provisions of tort law in China do not give rise to fraud, either through comparative interpretation, systematic interpretation, literal interpretation, or from the perspective of contractual negligence liability, the functional perspective of interpretation theory, or the perspective of judicial practice needs. Pure economic loss is excluded from the scope of protection. The general provisions here only provide a possible remedy baseline, in the specific application, it is necessary to further refine the interpretation of the elements of fraud infringement, in order to meet the tort law for the interests of more stringent protection standards than rights. On the basis of a clear interpretation of the mode of compensation for damages, the coordination of the mode of compensation for damages between the fraudulent tort law and the contract law should affirm the coexistence of the fraudulent party's right to cancel the contract and the claim for damages, and give the fraudulent party the right to choose when exercising it. When the fraudulent party does not request to cancel the contract, the right of claim for damages for negligence under contract stipulated in Article 42 of the Contract Law and the right of claim for damages for tort stipulated in Article 6 of the Tort Law may be deemed as the right of claim for damages for negligence under contract law. The cause of action shall be chosen by the fraudulent party, and when the fraudulent party requests the cancellation of the contract, it may choose one from Article 42 of the Contract Law, Article 58 of the Contract Law and Article 6 of the Tort Law as the basis of the claim for damages for fraud and obtain corresponding relief.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
，
本文编号：2179114
[Abstract]:Fraud, also known as "fraud" in continental law system, is often referred to as "false statement" in Anglo-American law. It refers to the act of one party intentionally concealing the true situation or providing false information to induce the other party to fall into error and make a false declaration of will. Fraud, as a defective expression of will, will lead to the cancellation or invalidation of the civil act. With the rapid development of social economy, the moral hazard of market operation is increasing, various new types of fraud such as telecommunication fraud, network fraud and so on. The limitations of the single mode of contract law regulation in the remedy of compensation for fraudulent damages are becoming more and more obvious. It is imperative to answer the question of whether the losses caused by fraud, especially the pure economic losses, can be remedied by the tort law of our country. The theory of balance of legal system, the theory of superior legal interests, and the theory of litigation gate are three aspects. These theoretical obstacles can be solved by the relativity cognition of the internal value rank of the tort law and the application of the theory of the parties'choice of cause of action under the concurrence of liabilities, which involves the third party. The necessity of benefit relief in fraud is also in litigation jurisdiction, the application of punitive damages, the scope of damages, and the regulation of fraud infringement in the commercial field. This kind of independent tort has formed a relatively mature set of regulatory rules; the countries and regions of the continental law system are more inclined to provide tort remedies for fraud through the general provisions of the tort law. It should be affirmed that the current general provisions of tort law in China do not give rise to fraud, either through comparative interpretation, systematic interpretation, literal interpretation, or from the perspective of contractual negligence liability, the functional perspective of interpretation theory, or the perspective of judicial practice needs. Pure economic loss is excluded from the scope of protection. The general provisions here only provide a possible remedy baseline, in the specific application, it is necessary to further refine the interpretation of the elements of fraud infringement, in order to meet the tort law for the interests of more stringent protection standards than rights. On the basis of a clear interpretation of the mode of compensation for damages, the coordination of the mode of compensation for damages between the fraudulent tort law and the contract law should affirm the coexistence of the fraudulent party's right to cancel the contract and the claim for damages, and give the fraudulent party the right to choose when exercising it. When the fraudulent party does not request to cancel the contract, the right of claim for damages for negligence under contract stipulated in Article 42 of the Contract Law and the right of claim for damages for tort stipulated in Article 6 of the Tort Law may be deemed as the right of claim for damages for negligence under contract law. The cause of action shall be chosen by the fraudulent party, and when the fraudulent party requests the cancellation of the contract, it may choose one from Article 42 of the Contract Law, Article 58 of the Contract Law and Article 6 of the Tort Law as the basis of the claim for damages for fraud and obtain corresponding relief.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
，
本文编号：2179114
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