作为债之独立类型的法定补偿义务

在公法和社会法领域内,法定补偿义务作为债的独立类型由来已久。但就法定补偿义务可否作为私法上独立类型之债,与合同之债、侵权之债、不当得利之债、无因管理之债等并身而立,民法学界远未达成共识。若从解释论角度出发进行分析,侵权责任法若干条款规定的补偿义务、"分担损失"规则以及"有财产的无民事行为能力人、限制民事行为能力人造成他人损害的,从本人财产中支付赔偿费用"等,都属有关法定补偿义务的规定。它们与民法通则及最高人民法院相关司法解释确认的法定补偿义务一起,构成我国民法中独立类型之债。在我国的责任保险制度尚不发达,社会保障制度还远未健全的背景下,如果法定补偿义务制度运用得当,无疑可在一定程度上济侵权损害赔偿责任制度之穷。

Statutory Obligation of Compensation as an Independent Kind of Obligatio

In the fields of public law and social law, statutory obligation of compensation, as a kind of obligatio, has long history. However, academic consensus is far from being reached among civil law scholars when it comes to the question of whether statutory obligation of compensation could be an independent kind of obligatio in private law, just like obligation founded on contract, tort, unjust enrichment, voluntary service, etc. From the perspective of interpretation theory, all the following provisions of Tort Liability Law of the PRC can be considered as establishing statutory obligations of compensation: the second sentence of Article 23, the second sentence Article 31, the second part of Article 33 Paragraph 1 and Article 87, which provide for compensatory obligations; Article 24, which establishes the rule of "loss sharing"; and the first sentence of Article 32 Paragraph 2, which provides that "Where a person without civil conduct capacity or with limited civil conduct capacity, who has property, causes any harm to another person, the compensations shall be paid out of his own property". The obligations provided for in the above provisions, together with the statutory obligations of compensation provided in the General Principles of Civil Law and in the relevant judicial interpretations issued by the Supreme People''s Court, constitute an independent kind of obligatio in Chinese civil law. Currently the system of liability insurance is still undeveloped and the social security system is still far from perfect in China. Under these circumstances, the appropriate application of the statutory obligation of compensation could undoubtedly make up for the deficiencies in the tort damages system in China.