连带责任的弹性不足及其克服

发布时间：2019-05-11 08:39

【摘要】：基于法律规范与公共政策的紧张关系,当代社会的连带责任存在弹性不足的缺陷,须依立法和司法予以克服。规范设计上应坚持连带责任法定原则,并有法定程度之差别:自然连带责任派生于事实的整体性,为宽松的法定化;建构性连带责任并未满足事实整体性的要求,基于特殊的公共政策而生,须予严格法定。即便无"连带"字样也可成立自然连带责任,但原则上非经明示不得成立建构性连带责任。建构性连带责任与自然连带责任可以构成责任竞合,不存在严格的适用顺序。依据自然连带责任可填补建构性连带责任的法律漏洞。法官不得依类推适用任意创设建构性连带责任新类型。违约连带责任、共同犯罪未必构成侵权连带责任。连带责任也不当然具备传递性。
[Abstract]:On the basis of the tense relationship between legal norms and public policies, the joint and several liability of contemporary society has the defect of insufficient elasticity, which should be overcome by legislation and judicature. In the standard design, we should adhere to the legal principle of joint and several liability, and there are differences in the degree of legality: natural joint and several liability is derived from the integrity of the facts and is loose legalization; Constructive joint and several liability does not meet the requirements of the integrity of the facts, based on special public policies, must be strictly statutory. Even without the words "joint and several", natural joint and several liability can be established, but in principle, constructive joint and several liability cannot be established without express expression. Constructive joint and several liability and natural joint and several liability can constitute the concurrence of liability, and there is no strict order of application. According to the natural joint and several liability, the legal loophole of constructive joint and several liability can be filled. Judges shall not arbitrarily create a new type of constructive joint and several liability by analogy. Joint liability for breach of contract, joint crime may not constitute tort joint liability. Joint and several liability is not, of course, transitive.
【作者单位】：烟台大学法学院;
【基金】：国家社科基金青年项目“侵权连带责任法定原则及其运行机制研究”(项目批准号:11CFX016)的阶段性成果
【分类号】：D923

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