专家不实陈述对第三人责任研究
发布时间：2018-08-12 11:02
【摘要】：专家对第三人责任是指专家在执业过程中存在过错导致与其没有合同关系的第三人遭受损害的责任问题。专家不实陈述对第三人责任属于专家责任的一种类型。本文基于三个方面来探讨专家不实陈述对第三人责任制度,一是作为受害者的第三人是否应当获得救济,即专家承担责任的理论依据和法律依据是什么；二是专家对没有契约关系的第三人造成的纯粹经济损失进行赔偿的责任模式,即损害救济的法律模式是什么,是侵权责任还是契约责任；三是对第三人的损失如何赔偿的问题。通过比较法研究,英美法系确立了过失侵权责任类型,专家不实陈述行为被认为是违反了过失侵权责任的注意义务要件,因此要承担侵权责任；德国法由于侵权责任对纯粹经济损失赔偿的限制,主要通过拟制和扩张合同范围来解决。当前,我国法律中对专家责任的规定较少,依据侵权法对侵权损害的规定,可以采用“一般侵权行为条款”法理适用模式,对于第三人所造成的纯粹经济损失纳入侵权法的范畴处理,得出在我国可以通过侵权法模式来解决专家对第三人责任问题的结论。此外,为了防止诉讼泛滥,对纯粹经济损失的赔偿应进行限制,以防止对专家责任的过重不利于专家作用的发挥,主要是对相关第三人的范围进行限制。
[Abstract]:The liability of the expert to the third party refers to the liability of the third party who has no contractual relationship with the expert in the course of his practice. The expert misstates responsibility to the third party belongs to a type of expert responsibility. Based on three aspects, this paper probes into the system of liability to the third party of the false statement of the expert, one is whether the third person who is the victim should get relief, that is, what is the theoretical basis and the legal basis for the expert to bear the responsibility; The second is the liability mode of the expert to compensate the pure economic loss caused by the third party without contract, that is, what is the legal model of the damage relief, whether the tort liability or the contract liability; the third is the question of how to compensate the third party's loss. Through the comparative study, the Anglo-American law system has established the fault tort liability type, the expert false statement behavior is considered to have violated the negligence tort liability duty of care element, therefore must bear the tort liability; Due to the limitation of tort liability on compensation for pure economic loss, German law is mainly settled by making and expanding the scope of contract. At present, there are few provisions on the liability of experts in our country's law. According to the provisions of tort law on tort damage, we can adopt the legal application mode of "General Tort Clause". The pure economic loss caused by the third party is dealt with in the category of tort law, and the conclusion that experts' liability to the third party can be solved by tort law mode in our country. In addition, in order to prevent the overflowing of litigation, the compensation for pure economic loss should be restricted to prevent the excessive liability of experts against the role of experts, mainly to limit the scope of the third party concerned.
【学位授予单位】：云南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
本文编号：2178852
[Abstract]:The liability of the expert to the third party refers to the liability of the third party who has no contractual relationship with the expert in the course of his practice. The expert misstates responsibility to the third party belongs to a type of expert responsibility. Based on three aspects, this paper probes into the system of liability to the third party of the false statement of the expert, one is whether the third person who is the victim should get relief, that is, what is the theoretical basis and the legal basis for the expert to bear the responsibility; The second is the liability mode of the expert to compensate the pure economic loss caused by the third party without contract, that is, what is the legal model of the damage relief, whether the tort liability or the contract liability; the third is the question of how to compensate the third party's loss. Through the comparative study, the Anglo-American law system has established the fault tort liability type, the expert false statement behavior is considered to have violated the negligence tort liability duty of care element, therefore must bear the tort liability; Due to the limitation of tort liability on compensation for pure economic loss, German law is mainly settled by making and expanding the scope of contract. At present, there are few provisions on the liability of experts in our country's law. According to the provisions of tort law on tort damage, we can adopt the legal application mode of "General Tort Clause". The pure economic loss caused by the third party is dealt with in the category of tort law, and the conclusion that experts' liability to the third party can be solved by tort law mode in our country. In addition, in order to prevent the overflowing of litigation, the compensation for pure economic loss should be restricted to prevent the excessive liability of experts against the role of experts, mainly to limit the scope of the third party concerned.
【学位授予单位】：云南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913
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