论侵权法上抗辩事由的内涵

传统规范结构理论在解释侵权法上抗辨事由的内涵时遭遇到了困难,而通过对构成要件的性质以及抗辩事由与法效果之间关系的重新论证,可以将抗辩事由定义为评价妨碍事实的抽象总结,这种方法不仅有助于对抗辩事由的外延的确定,而且也有助于侵权法领域的证明责任之明晰。

The Meaning of the Defenses in Tort Law

It is difficult for the conventional theory of the structure of the legal norm to explain the meaning of the defenses in tort law.After demonstrating the relationship between the defenses and the legal effects,we can define the defenses as the Abstraction and summarization of the facts that can deny a positive evaluation.This conclusion is useful to define the scope of the defenses,and to clarify the allocation of the burden of proof in tort law.