日本建筑师专家责任研究

发布时间：2018-11-10 23:56

【摘要】： 日本建筑师专家责任的理论研究和司法实践较为发达,具有借鉴价值。日本学界对于建筑师违约责任存在承揽说和准委托说。从两种合同的性质和法律规定以及司法实务等角度出发,将其视为准委托合同更为妥当。但是,建筑师相关合同的契约性并不能完全实现专家责任制度的目的,其侵权性更为重要。建筑师侵权责任的过错与其他专家责任相同,适用过错责任原则。侵害行为的主要依据是建筑师的具体执业范围。但我国建筑师执业范围存在不合理性,与监理工程师的执业范围存在交叉,导致职责混淆,责任认定不明。日本建筑师的执业活动包含设计与监理两大业务的形式更为合理,应当适当调整我国建筑师的执业活动范围。建筑师的工作特质导致其最合理的责任方式为损害赔偿。建筑师导致的损害一般为纯粹经济损害,英美法上的纯经济损失规则没有在日本及我国的侵权法上形成理论障碍。建筑工程中主体繁多造成建筑师责任的因果关系形成多因一果的情况,责任的承担需要以原因力的大小来判断。设计、监理、施工实现实质分离能够在一定程度上明确责任承担。因此,《中华人民共和国建筑法》上关于设计与施工可以由同一主体承包的规定有欠妥当。建筑师在建筑师事务所中的不同职位也会影响建筑师责任。建筑师为职员,则个人侵权责任和建筑师事务所的雇主责任形成竞合。建筑师为事务所(公司型)董事,则个人侵权责任与日本商法中所谓的董事责任竞合。但是不管怎样,建筑师个人的民事责任不会被掩盖。我国建筑师与所属建筑设计单位之间的从属关系以及立法上的不完善往往使设计单位成为建筑师责任的承担者。日本建筑师在建筑确认申请书上签字盖章,但是实际并未实施监理工作的现象与中国建筑师在非本人设计或者负责设计的文件(图纸)上签字盖章的现象相似。虽然建筑师没有实际执业,但是违反了作为专家应当具备的预见和回避结果义务,以专家标准来衡量,应当追究其侵权责任。建筑师与其他责任主体共同承担连带赔偿责任,但在内部责任分担上,建筑师不承担责任。
[Abstract]:The theoretical research and judicial practice of the expert responsibility of Japanese architects are more developed and have reference value. Japanese academic circles have contract theory and quasi-entrustment theory for architect's breach of contract. It is more appropriate to regard the two kinds of contracts as quasi-entrustment contracts from the point of view of their nature and legal provisions as well as judicial practice. However, the contractual nature of the architect-related contract can not fully achieve the purpose of the expert liability system, and its tort is more important. The fault of architect's tort liability is the same as that of other experts, and the principle of fault liability is applied. The main basis of infringement is the specific scope of the architect's practice. However, there is irrationality in the scope of architect's practice in our country, which intersects with the scope of supervision engineer, which leads to confusion of responsibility and unclear identification of responsibility. The professional activities of Japanese architects are more reasonable in the form of design and supervision, and the scope of the professional activities of architects in China should be adjusted appropriately. The architect's job traits lead to the most reasonable form of liability for damages. The damage caused by architects is generally pure economic damage, and the rules of pure economic loss in Anglo-American law have not formed a theoretical obstacle in the tort law of Japan and China. The causality of the architect's responsibility is caused by the multiplicity of the main body in the construction project, and the burden of the responsibility needs to be judged by the magnitude of the causative force. Design, supervision, construction to achieve substantive separation can to a certain extent clear responsibility. Therefore, the stipulation that the design and construction can be contracted by the same subject in the Building Law of the people's Republic of China is improper. The different positions of an architect in an architect's office also affect the architect's responsibilities. If the architect is an employee, the individual tort liability and the employer's liability of the architect firm will be in line with each other. If the architect is the director of the firm, the individual tort liability is in line with the so-called director's liability in Japanese commercial law. But in any case, the individual civil liability of the architect will not be concealed. The subordinate relationship between Chinese architects and their architectural design units and the imperfection of legislation often make the design units become the responsibility of architects. Japanese architects sign and seal the building confirmation form, but the phenomenon that supervision is not carried out in practice is similar to that of Chinese architects on documents (drawings) that are not designed or responsible for the design. Although the architect does not actually practise, he violates the obligation of foresight and evading the result which the expert should possess, and should be investigated for its tort liability according to the standard of the expert. The architect and other subjects bear joint and several liability, but in the internal liability sharing, the architect does not bear the responsibility.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D931.3;DD912.29

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