不明行为人高楼抛掷物致人损害的处理——兼评《中国民法典草案:侵权行为法编》第153条

不明行为人高楼抛掷物伤害案在现代城市时有发生,法院根据现有法律面对这样的诉讼很难作出合理的判决.笔者主张在此类案件中,如果确需建筑物的所有人或管理人承担责任的话,只能是根据共同受益的原因进行补偿,补偿的范围是受害人所受到的财产损失而不包括精神损害.责任承担者包括建筑物所在小区的所有人或管理人和受害人本身,而且他们之间不应当承担连带责任.只有这样才能真正有利于发现真相和平衡各方当事人的责任,发挥侵权法的预防损害发生的功能.

On Cases of Somebody Injured by Articles that Threw by An Unknown Perpetrator From A Tall Building

In modern city,these case happened ever and again that somebody injured by articles that threw by an unknown perpetrator from a tall building.It is difficult to make a reasonable judgment for the court facing such litigation under existing laws.The author advocates in such cases,if and where the building owners or managers should be held responsible,they should compensate on the following principles:Firstly,the scope of liability is limited to the property damage except mental damage.Secondly the duty bearers should contain all owner or manager in the structure district of the building,since they have benefits from the common habitat that causes the difficulty to find the perpetrator,and the injurer himself,Last,all bearers just have to take his/her share without joint and several liability.