论补充责任
发布时间：2018-10-08 10:32
【摘要】： 补充责任有两种含义。狭义的补充责任指补充责任人承担第一责任人赔偿不能部分的损害、并可于赔偿后向第一责任人全额追偿的责任形态。广义的补充责任指补充责任人承担第一义务人赔偿不能部分的损害、但赔偿后不得向第一义务人追偿的责任形态。 有关补充责任的研究主要集中在两方面:补充责任人承担责任的依据,以及补充责任人承担补充责任的依据。前者是责任的依据,即补充责任人因何原因承担责任;后者是责任形态的依据,即在确定责任人应承担责任后,确定其承担补充责任的依据。 本文从我国有关补充责任的规定及学说出发,分析我国补充责任的发生根据及适用情形,并以此为基础,考察国外(主要为美国及欧洲大陆)对这些情形的规定及处理方式,同时考察国外的补充责任制度,以了解世界主要法域补充责任的立法及学说现状。可以发现:美国及欧洲大陆不存在与中国类似的补充责任制度,立法与学说对各类多数人责任案件均等同视之,忽视了不同案件之间的差异性,制度设计粗糙,可能导致不公正的后果;而中国虽有补充责任的规定,但散见于各项具体制度中,尚无一般理论,此外,对补充责任依据的研究不够深入。 因此,本文分析了补充责任制度的依据,包括补充责任人承担责任的依据以及补充责任人承担补充责任的依据。就前一部分,笔者根据补充责任的不同情形,推出了补充责任人违反义务的一般理论。就后一部分,笔者从两方面展开讨论: 一方面,从补充责任的不同情形出发,分析其案件构成的特点,进而初步推导出其责任形态的特点;另一方面,笔者列举了全部的多数人责任形态,包括连带责任(连带责任又包括狭义的连带责任以及广义的连带责任,后者即不真正连带责任)、共同责任、按份责任、按份-连带责任以及补充责任,通过比较不同责任形态的特点,并与前一方面的分析相对照,根据错责相一致原则及其他利益考量,最终推出了补充责任发生依据的一般理论。即补充责任的发生根据是:作为义务人应对因自己的过错致使积极加害人加害受害人承担补充赔偿责任;狭义的补充责任的发生根据是:作为义务人应对积极加害人利用自身的过错加害受害人承担补充责任,追偿权的依据在于积极加害人利用了作为义务人的过错,二者的过错程度悬殊、性质迥异。
[Abstract]:Supplementary liability has two meanings. Supplementary liability in a narrow sense refers to the liability pattern in which the compensation of the first responsible person can not be partial and can be fully recovered from the first responsible person after the compensation. In a broad sense, supplementary liability refers to the liability form in which the compensation of the first obligor cannot be partially compensated by the person responsible for supplementary liability, but the liability form of the compensation shall not be recovered from the first obligor. The research on supplementary responsibility mainly focuses on two aspects: the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility of the supplementary responsible person. The former is the basis of responsibility, that is to say, the supplementary responsible person bears the responsibility for what reason; the latter is the basis of the form of responsibility, that is, after determining that the responsible person should bear the responsibility, the latter is the basis on which the responsible person should assume the supplementary responsibility. Based on the provisions and theories of supplementary liability in China, this paper analyzes the basis and application of supplementary liability in China, and on the basis of this, investigates the regulations and methods of dealing with these situations abroad (mainly the United States and continental Europe). At the same time, the foreign supplementary liability system is investigated to understand the current situation of the legislation and doctrine of supplementary liability in major jurisdictions of the world. It can be found that the United States and the European continent do not have similar supplementary liability systems as China, and the legislation and doctrine treat the cases of majority liability equally, ignoring the differences between different cases, and the system design is rough. Although China has the stipulation of supplementary liability, there is no general theory in every concrete system, besides, the research on the basis of supplementary liability is not deep enough. Therefore, this paper analyzes the basis of the supplementary liability system, including the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility. In the first part, according to the different situations of supplementary liability, the author puts forward the general theory of the breach of obligation by supplementary liability. In the latter part, the author discusses from two aspects: on the one hand, from the different situations of supplementary responsibility, analyzes the characteristics of its case composition, and then derives the characteristics of its responsibility form; On the other hand, the author enumerates all the forms of majority liability, including joint liability (joint liability includes narrow sense of joint and several liability and broad sense of joint liability, the latter is not true joint liability), common responsibility, according to the share responsibility, By comparing the characteristics of different forms of liability and comparing with the previous analysis, according to the principle of consistent liability and other benefit considerations, the general theory of the occurrence of supplementary liability is put forward. That is to say, the basis of supplementary liability is that the obligor should be responsible for the compensation of the victim because of his fault. The basis of supplementary liability in the narrow sense is that the obligor should bear the supplementary responsibility for the victim who takes advantage of his fault, and the basis of the right of recourse is that the obligor has taken advantage of the fault of the obligor. The degree of fault between the two is very different.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D913
本文编号：2256443
[Abstract]:Supplementary liability has two meanings. Supplementary liability in a narrow sense refers to the liability pattern in which the compensation of the first responsible person can not be partial and can be fully recovered from the first responsible person after the compensation. In a broad sense, supplementary liability refers to the liability form in which the compensation of the first obligor cannot be partially compensated by the person responsible for supplementary liability, but the liability form of the compensation shall not be recovered from the first obligor. The research on supplementary responsibility mainly focuses on two aspects: the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility of the supplementary responsible person. The former is the basis of responsibility, that is to say, the supplementary responsible person bears the responsibility for what reason; the latter is the basis of the form of responsibility, that is, after determining that the responsible person should bear the responsibility, the latter is the basis on which the responsible person should assume the supplementary responsibility. Based on the provisions and theories of supplementary liability in China, this paper analyzes the basis and application of supplementary liability in China, and on the basis of this, investigates the regulations and methods of dealing with these situations abroad (mainly the United States and continental Europe). At the same time, the foreign supplementary liability system is investigated to understand the current situation of the legislation and doctrine of supplementary liability in major jurisdictions of the world. It can be found that the United States and the European continent do not have similar supplementary liability systems as China, and the legislation and doctrine treat the cases of majority liability equally, ignoring the differences between different cases, and the system design is rough. Although China has the stipulation of supplementary liability, there is no general theory in every concrete system, besides, the research on the basis of supplementary liability is not deep enough. Therefore, this paper analyzes the basis of the supplementary liability system, including the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility. In the first part, according to the different situations of supplementary liability, the author puts forward the general theory of the breach of obligation by supplementary liability. In the latter part, the author discusses from two aspects: on the one hand, from the different situations of supplementary responsibility, analyzes the characteristics of its case composition, and then derives the characteristics of its responsibility form; On the other hand, the author enumerates all the forms of majority liability, including joint liability (joint liability includes narrow sense of joint and several liability and broad sense of joint liability, the latter is not true joint liability), common responsibility, according to the share responsibility, By comparing the characteristics of different forms of liability and comparing with the previous analysis, according to the principle of consistent liability and other benefit considerations, the general theory of the occurrence of supplementary liability is put forward. That is to say, the basis of supplementary liability is that the obligor should be responsible for the compensation of the victim because of his fault. The basis of supplementary liability in the narrow sense is that the obligor should bear the supplementary responsibility for the victim who takes advantage of his fault, and the basis of the right of recourse is that the obligor has taken advantage of the fault of the obligor. The degree of fault between the two is very different.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D913
【引证文献】
相关硕士学位论文 前6条
1 李英姿;不作为侵权责任研究[D];郑州大学;2011年
2 陈丽;论公共场所的安全保障义务[D];华东政法大学;2008年
3 杨琳;侵权责任中的补充责任研究[D];华东政法大学;2008年
4 邢瑶;补充责任中的先诉抗辩权研究[D];郑州大学;2009年
5 陆望舒;《侵权责任法》中补充责任问题探析[D];华东政法大学;2012年
6 刘巧芸;论劳务派遣中的雇主责任[D];吉林大学;2012年
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