无权占有人的占有物致人损害民事责任研究

发布时间：2018-02-28 19:44

本文关键词： 无权占有占有物侵权所有人责任占有人责任折中主义　出处：《上海师范大学》2017年硕士论文　论文类型：学位论文

【摘要】：近年来,在物件占有与所有分离期间,无权占有人的占有物致人损害事件频发,查阅我国《民法通则》、《物权法》以及《侵权责任法》等相关法律法规,对此类侵权行为并无明确规定,更缺少无权占有人的占有物致人损害方面的相关立法。纵观国内学者对于占有物侵权的研究成果,在无权占有人的占有物致人损害方面,至今也没有学者进行清晰的界定和系统的研究。针对我国这一现状,对比国内外相关立法上存在的差异,可以发现国外对于无权占有人的占有物致人损害这一问题,主要有三种代表性的立法经验:以法国法和瑞士法为代表的所有人负责主义、以德国法为代表的占有人负责主义以及以日本法为代表的折中主义。通过对这三种立法经验的理论基础及适用加以分析比较,结合我国的司法实践,本文主要从法律用语、归责原则、侵权形态三个方面提出了对无权占有期间占有物致人损害这一问题应当如何完善的相关建议,以期维护被侵权人的相关合法权益。由于我国立法关于无权占有人的占有物侵权并无详尽的规定,在占有与所有脱离的情况下没有考虑到无权占有人的占有物致人损害的民事责任;在法律用语上,尽管规定了管理人、使用人等责任主体,但是这些主体之间的范围及界定并不明确,从而导致了法律用语不规范,无权占有人与所有人的责任划分不清晰;另外,我国目前相关立法也没有规定无权占有人的占有物侵权的归责原则以及责任承担形态。借鉴国外立法经验,针对我国立法上存在的诸多问题,本文认为要完善无权占有人的占有物致人损害民事责任,首先应当规范法律用语,统一法律用语,以占有人、持有人代替管理人和使用人;其次对于无权占有人以及所有人的责任应根据无权占有物的不同性质进行合理划分;在归责原则上,也应根据占有物的不同性质采用不同的归责原则,对于有生命物一般采取无过错责任原则,而对于无生命物,以过错责任为原则;最后对于侵权责任形态以及抗辩事由进行合理的完善建议,所有人和无权占有人承担连带责任。笔者认为,无权占有期间占有物致人损害的案件频发,必须完善立法规定,才能真正解决无权占有人的占有物致人损害民事责任当前存在的一些不足。
[Abstract]:In recent years, during the period of separation of possession and possession of objects, damage events caused by possession of unauthorized occupants occur frequently. Relevant laws and regulations such as General principles of Civil Law, property Law and Tort liability Law of China are consulted. There is no clear stipulation on this kind of tort, and there is no relevant legislation on damage caused by possession of unauthorized possessor. In the aspect of damage caused by possession of unauthorized possessor, the research results of domestic scholars on the infringement of possession are reviewed. There is no clear definition and systematic research by scholars. In view of the present situation of our country, comparing the differences in relevant legislation at home and abroad, we can find that the problem of damage caused by possession of unauthorized occupants in foreign countries can be found. There are three main types of representative legislative experience: universal accountability, represented by French and Swiss law, By analyzing and comparing the theoretical basis and application of the three kinds of legislative experience, combining with the judicial practice of our country, this paper mainly discusses the legal terms, through analyzing and comparing the possessive responsible doctrine represented by German law and the eclectic doctrine represented by Japanese law, and comparing the theoretical basis and application of these three kinds of legislative experiences. The principle of imputation, the form of tort and the relevant suggestions on how to perfect the problem of damage caused by possession during the period of unauthorized possession are put forward. In order to safeguard the relevant legal rights and interests of the infringed person. As there are no detailed provisions on the infringement of the possession of the unauthorized possessor in our legislation, Without taking into account the civil liability for damage caused by the possession of a person who is not entitled to possession in the event of separation from possession; in legal terms, however, the subject of liability, such as the administrator, the user and the like, is provided for, However, the scope and definition of these subjects are not clear, which leads to irregular legal terms and unclear division of responsibilities between the unauthorized possessor and the owner. At present, the relevant legislation of our country has not stipulated the principle of imputation and the form of liability bearing of the infringement of the possession of the unauthorized possessor. Referring to the foreign legislative experience, this paper aims at the problems existing in the legislation of our country. This paper holds that in order to perfect the civil liability for damage caused by the possession of the unauthorized possessor, we should first standardize the legal terms, unify the legal terms, take the place of the manager and the user by the possessor and the holder; Secondly, the responsibility of the unauthorized possessor and the owner should be reasonably divided according to the different nature of the unauthorized possession; in the principle of imputation, different imputation principles should also be adopted according to the different nature of the possession. The principle of no-fault liability is generally adopted for the living thing, and the principle of fault liability is the principle for the inanimate thing. The author believes that there are frequent cases of damage caused by possession during the period of unauthorized possession, so it is necessary to perfect the legislative provisions. Only then can we really solve some shortcomings existing in the civil liability for damage caused by the possession of the unauthorized possessor.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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