安全保障义务责任的断裂与缝合——第三人介入情形的责任类型分析

《侵权责任法》明确了安全保障义务的侵权法地位,并确立了第三人介入情形下安全保障义务人的补充责任。补充责任将安全保障义务人置于赔偿次位具有其独特的含义,但其也存在与侵权法原理、两大法系及司法操作的不协调。《合同法》安全保障义务人违约责任的直接责任性质进一步凸显了安全保障义务人补充责任的突兀,但两者也有诸多衔接的可能性。废除补充责任是可能的选项之一。在目前立法背景下,类型化第三人介入情形下违反安全保障义务时义务人的责任,实现违约责任与侵权责任的同时请求;或者是通过对安全保障义务补充责任的再解释,弥合两者之间的裂缝,亦是可行的方法。

Review on the Liability for Failure to Perform Duty of Safety Protection -Analysis of Categories of Liabilities in Case of the Third Party Involved

In accordance with the Tort Law, the duty of safety protection is specified and where a third party is involved as tortfeasor, the duty - holder of safety protection should assume the corresponding comple- mentary liability. Such complementary liability has its distinct effects though it is incompatible with tort law principles in the common law system and the continental law system as well as judicial practice. Since the Con- tract Law has imposed a direct Liability for breach of contract on duty - holders of safety protection, which makes the complementary tortious liability more awkward. But there are possible ways to coordinate these two liabilities and one of alternatives is to abolish the complementary liability, Considering the current legislation, it is suggested to categorize the liabilities of duty - holders of safety protection in case of the third party＇ s in- volvement in the tortfeasance, so that the tortious liability and liability for breach of contract can be claimed simultaneously. Or the complementary liability for failure to perform duty of safety protection should be reinter- preted so as to coordinate the tortious liability and liability for breach of contract.