侵权责任法第32条之解释论研究

发布时间：2018-06-23 15:43

本文选题：监护人 + 被监护人　；参考：《吉林大学》2015年硕士论文

【摘要】：《侵权责任法》第32条承《民法通则》第133之旧例，规定了被监护人侵权之监护人责任，故该条常名为“监护人责任”条款。其出台并未终止学者对于监护人责任的争论。此种争论主要体现在如下三个方面：一是被监护人是否为责任主体？若是，其承担责任之基础何在？二是监护人责任性质应该做何种认定？到底是无过错责任还是过错推定责任？是自己责任还是过错推定责任？三是被监护人侵权且被监护人有财产时，监护人与被监护人之间关系如何？对于第一个问题，立法部门和司法部门都认为被监护人侵权时，监护人是唯一的责任主体。但是第32条第2款前句又分明规定了当被监护人有财产时，从本人财产中支付赔偿费用。显然，立法部门的观点是自相矛盾的。为缓解此种矛盾，学者提出了两种解释方案：一是认为第32条第2款前句乃被监护人与受害人之间的公平责任；二是认为第32条第2款前句乃监护人与被监护人之间的公平责任。但这两种解释理论上都无法推翻被监护人是责任主体的结论。对于第二个问题，学界通说认为：监护人责任是替代责任、无过错责任。但在讨论其责任构成时，又普遍认为其责任基础在监护义务的违反，这就与替代责任的本质有所矛盾。同时，认为监护人责任是无过错责任隐含诸多弊端。对于第三个问题，学界的观点最为繁复多样。有学者认为监护人与被监护人之间应该是连带责任，有学者认为应该是公平责任，还有学者认为应当是补充责任。第一种观点是立法论上的建议，无法从文字当中获得该结论。后两个观点是在否认被监护人是责任主体的基础上，试图将被监护人对受害人的外部赔偿关系内化为与监护人之间的内部关系。但理论上都不具周延性。本文通过文义解释、对比解释、体系解释等多种解释方法梳理第32条后认为，本条涉及主体包括被监护人、监护人和受害人三方。整条的措辞都围绕这三者之间的关系展开，其立法目的也冀图在这三者间寻得利益之平衡。故对第32条的解释应该从三者之间的相互关系着手。第一款前句规定的是监护人与受害者之间的关系，，监护人承担的应该是过错推定责任，责任的基础在于监护义务的违反，性质上属于自己责任、独立责任。第一款后句“赔偿，但适当减轻”是第24条“不赔，但适当赔偿”的反面表述，具有公平责任的性质。第二款前句规定的是被监护人与受害者之间的关系。被监护人责任的认定宜依据第6条采纳过错归责原则，在尚未承认过错能力的情形下，不妨参照民事行为能力制度结合个案具体分析。32条第2款前句仅仅在被监护人责任成立后的责任承担上具有意义。第二款后句则具有指引性条款的作用，监护人对不足部分的赔偿依据仍是第1款。监护人与被监护人在责任构成与责任承担上相互独立。
[Abstract]:Article 32 of the Tort liability Law follows the old example of Article 133 of the General principles of Civil Law, which stipulates the liability of the guardian who has been infringed by the guardian, so this article is often called the "guardian's responsibility" clause. Its introduction does not end scholars' controversy about guardian responsibility. This kind of argument is mainly reflected in the following three aspects: first, whether the guardian is the subject of responsibility? If so, what is the basis for assuming responsibility? Second, what kind of determination should be made to the nature of guardian responsibility? Is it liability without fault or liability for presumption of fault? Is it your own liability or is it the presumption of fault? Third, what is the relationship between the guardian and the guardian when the guardian infringes and the guardian has property? For the first question, both the legislature and the judiciary agree that the guardian is the sole subject of responsibility when infringed by the guardian. However, the preceding sentence of article 32, paragraph 2, clearly provides for the payment of compensation from one's own property when the guardian has property. Clearly, the legislature's views are contradictory. In order to alleviate this contradiction, scholars put forward two kinds of interpretation schemes: the first is that the preceding sentence of article 32 (2) is the fair responsibility between the guardian and the victim; Second, it is considered that the preceding sentence of article 32, paragraph 2, is the fair duty between the guardian and the guardian. However, neither of these two interpretations can theoretically overturn the conclusion that the guardian is the subject of responsibility. For the second question, scholars generally believe that guardian liability is a substitute liability, no fault liability. However, it is generally believed that the basis of responsibility is the breach of guardianship obligation, which contradicts the essence of substitute responsibility. At the same time, it is believed that guardian liability implies many disadvantages without fault liability. For the third question, academic views are most complex and diverse. Some scholars think that there should be joint and several liability between guardian and guardian, some scholars think it should be fair responsibility, and others think it should be supplementary responsibility. The first is legislative advice, which cannot be drawn from the text. On the basis of denying that the guardian is the subject of responsibility, the latter two views attempt to internalize the external compensation relationship between the ward and the guardian as the internal relationship with the guardian. In theory, however, there is no circumstantial nature. After combing Article 32 by means of interpretation of meaning, contrast and system, the author holds that the subject of this article involves three parties: the guardian, the guardian and the victim. The wording of the whole article revolves around the relationship between the three, and its legislative purpose is to seek a balance of interests among the three. Therefore, the interpretation of article 32 should begin with the interrelation of the three. The relationship between the guardian and the victim is stipulated in the preceding sentence of the first paragraph. The guardian should assume the responsibility of presumption of fault. The basis of the responsibility lies in the breach of the duty of guardianship, which in nature belongs to one's own responsibility and independent responsibility. The negative expression in the chapeau of paragraph 1, "compensation, but with appropriate mitigation", is that in article 24, "not indemnified, but properly compensated", which is of an equitable nature. The preceding sentence of paragraph 2 provides for the relationship between the guardian and the victim. It is appropriate to adopt the principle of fault imputation in accordance with Article 6 of the determination of the liability of the guardian, where the fault capacity has not yet been recognized, Reference to the civil capacity system combined with the specific case analysis .32, paragraph 2 of the preceding sentence only on the responsibility of the guardian after the establishment of the responsibility has significance. The last sentence of the second paragraph has the function of a guiding clause, and the guardian's compensation for the insufficient part is still based on paragraph 1. The guardian and the guardian are independent of each other in the constitution of responsibility and the assumption of responsibility.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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