论我国过失所致纯粹经济损失赔偿规则的构建
发布时间：2018-08-31 16:23
【摘要】：由于过失所致纯粹经济损失中受害群体以及行为人责任的不确定性,缺乏社会典型公开性,加之其仅仅是受害者金钱方面的损失,传统理论中,各国侵权法普遍坚持过失所致纯粹经济损失责任排除规则。各国对过失所致纯粹经济损失不予赔偿的政策考量因素主要有水闸理论、价值位阶理论、行为自由维护理论、契约法保护理论以及经济分析理论。但随着社会的发展,上述政策考量因素逐一受到挑战,过失所致纯粹经济损失例外赔偿逐渐得到人们认可。我国《侵权责任法》内侵权行为一般条款对待过失所致纯粹经济损失的态度与法国侵权法中的概括模式相似。但实证分析表明,我国审判实践中法官对待过失所致纯粹经济损失的赔偿问题却偏向于德国的列举递进模式。本文通过对历史关联、制度优势、实践衔接三方面的分析,认为我国过失所致纯粹经济损失赔偿规则的构建应借鉴德国的列举递进模式,形成一个三阶层的规范体系,以此来为法官的审判实践活动提供明晰与正确的指引。
[Abstract]:Due to the uncertainty of the victim group and the responsibility of the perpetrator in the pure economic loss caused by negligence, there is a lack of typical social openness, and it is only the loss of the victim's money. Tort law of various countries generally insists on the exclusive rule of liability for pure economic loss caused by negligence. The policy considerations of non-compensation for pure economic losses caused by negligence include sluice theory, value rank theory, behavior freedom maintenance theory, contract law protection theory and economic analysis theory. However, with the development of society, the above policy considerations are challenged one by one, and the exceptional compensation for pure economic losses caused by negligence is gradually accepted. The general terms of tort in tort liability law of our country treat pure economic loss caused by negligence similar to the general pattern in French tort law. However, the empirical analysis shows that, in our country's trial practice, the judges' compensation for pure economic losses caused by negligence is inclined to the German enumeration progressive model. Based on the analysis of historical relevance, institutional advantages and practical convergence, this paper holds that the construction of compensation rules for pure economic losses caused by negligence in China should draw lessons from Germany's enumeration and progression model and form a three-class normative system. In order to provide clear and correct guidance for the judge's trial practice.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2215522
[Abstract]:Due to the uncertainty of the victim group and the responsibility of the perpetrator in the pure economic loss caused by negligence, there is a lack of typical social openness, and it is only the loss of the victim's money. Tort law of various countries generally insists on the exclusive rule of liability for pure economic loss caused by negligence. The policy considerations of non-compensation for pure economic losses caused by negligence include sluice theory, value rank theory, behavior freedom maintenance theory, contract law protection theory and economic analysis theory. However, with the development of society, the above policy considerations are challenged one by one, and the exceptional compensation for pure economic losses caused by negligence is gradually accepted. The general terms of tort in tort liability law of our country treat pure economic loss caused by negligence similar to the general pattern in French tort law. However, the empirical analysis shows that, in our country's trial practice, the judges' compensation for pure economic losses caused by negligence is inclined to the German enumeration progressive model. Based on the analysis of historical relevance, institutional advantages and practical convergence, this paper holds that the construction of compensation rules for pure economic losses caused by negligence in China should draw lessons from Germany's enumeration and progression model and form a three-class normative system. In order to provide clear and correct guidance for the judge's trial practice.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前3条
1 梁慧星;;中国侵权责任法解说[J];北方法学;2011年01期
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3 葛云松;;《侵权责任法》保护的民事权益[J];中国法学;2010年03期
，本文编号：2215522
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