比例责任在侵权法上的适用之检讨

传统的"全有全无原则"在处理新型侵权案件之时,难以平衡加害人和受害人的利益,比例责任作为"全有全无原则"的补充则能较好地平衡加害人和受害人的利益。比较法上,主要是在责任成立阶段,通过引入概率因果关系理论,结合损害的酌定,建构比例责任理论。我国侵权法上,比例责任还适用于责任范围的确定上,如多数人侵权"共同因果关系"案型,但是该层面的比例责任不宜扩展至单独侵权。两种类型的比例责任具有不同的教义学基础:前者的基础是《侵权责任法》的公平责任原则,其能在特殊案型中对因果关系和损害重新解释;后者的基础则是《侵权责任法》第12条。应当认识到比例责任有其适用范围和限度,其只能作为传统侵权的补充。产品侵权、医疗侵权、环境侵权和"共同因果关系"数人侵权是我国侵权法上典型的比例责任适用的案型,相关理论仍然需要进一步厘定。

Review of the Application of Proportional Liability in Tort Law

The traditional "all-or-nothing principle" is difficult to balance the interests of the perpetrators and victims when dealing with new types of infringement cases. Proportional responsibility can be a better complement to the circumstance outlined above. In the comparative law, the theory of proportional liability is constructed mainly by introducing theory of probability causality and combining the discretion of damage at the establishment stage of responsibility. In China tort law, proportional liability also applies to the determination of the scope of responsibility, such as the "common causality" case. However, the proportional liability in this case should not be extended to individual infringement. The two types of proportional liability have different doctrinal foundations. The former is based on the principle of fair liability in the Tort Liability Law, which can reinterpret causality and damage in special cases. The latter is based on Article 12 of the Tort Liability Law. It should be recognized that proportional liability has its scope and limitation of application and can only be used as a supplement to traditional torts. Product infringement, medical infringement, environmental infringement and "common causality" are the typical cases applied by proportional liability in tort law in China, and relevant theories still need to be further determined.