论作为法律技术的连带责任——兼评我国《侵权责任法草案（二次审议稿）》第12、13条及相关条文

作为法律技术的连带责任解决了围绕无意思联络数人侵权行为而展开的共同侵权行为概念的争论。无意思联络数人在各行为人行为原因力可分的情况下,由其各自承担按份责任;在各自行为原因力不可分的情形下由该数人承担连带责任。后者虽与共同侵权行为一样均应承担连带责任,但两种连带责任却有着性质上的差别,共同侵权行为应该坚持传统的主观说。在主观说的基础上,共同侵权人承担连带责任是基于法律政策考量;无意思联络数人在行为原因力不可分的情形下承担连带责任乃基于法律技术考察。

The Joint and Several Liability as Legal Technology——Comments on Artide 12 and 13 and Related Articles of Chinese Tort Liability Law(the Second Draft)

The joint and several liability as legal technology has settled the disputes on the definition of the joint tort which has arisen around the tort by multiple torffeasors without conscious cooperation. Multiple torffeasors without conscious cooperation shall be severally liable when their acts are identifiable in causal force, while they shall be jointly and severally liable when not. Under the latter situation, the tortfeasors are similar with the joint tortfeasors who also bear joint and several liabilities. However, the two kinds of joint and several liabilities are different in nature. The joint tort should be defined according to the traditional subjective approach, based on which, the joint and several liabilities borne by the joint torffeasors attribute to the legal policy, while the joint and several liabilities borne by the tortfeasors without conscious cooperation are grounded on the investigation of legal technology.