民法典高空抛物致害责任规则的体系性解读:局限与克服

高空抛物致害责任自入法之日起即饱受批评,又因司法适用中存在一定漏洞而引发质疑。将高空抛物致害责任置于不确定加害人责任框架下进行体系性解读,有利于重新认识和评估立法上设定这一责任规则的正当性和局限性。不确定加害人责任既不符合固有侵权责任构成理论的预期,也未遵循传统诉讼理论在证明责任上的一贯立场,为了缓和其内在局限和避免发生泛用,须就不确定被告的范围、责任形式及举证负担等适用条件作出限制。立法上设定高空抛物致害责任规则时亦应注意其局限克服。我国民法典第1254条通过修正和完善其适用条件,深化了侵权责任法第87条确立的限制观念,具有明显的进步性。然而,民法典作为一部基本法,其规定难以包罗万象,高空抛物致害责任规则的适用漏洞仍需要通过司法解释、基于法官的个案经验进行填补。

A Systematic Interpretation of the Liability of Throwing Objects from Buildings in the Civil Code of PRC: Limitations and Solutions

The liability of throwing objects from buildings has drawn lots of criticism since it was written into the law, and has been further called into question for the loopholes in its judicial application. However, the framework for the liability of uncertain perpetrator may throw new light on its legitimacy and limitation. As the liability of uncertain perpetrator does not meet with the constitutive requirement of the tort liability, nor does it comply with the consistent position of the traditional litigation theory on burden of proof, it is necessary to limit the scope, form of liability and burden of proof for the uncertain perpetrator, in order to overcome its inherent limitation and avoid its misuse. In the same way, in stipulating liabilities for throwing objects from buildings, its inherent limitations should be concerned. It is an obvious progress in the amending and improving of the applicable conditions for liabilities of throwing objects from buildings in Article 1254 of the Civil Code of PRC, and has deepened the meaning of the limitation established in Article 87 of the Tort Liability Law of PRC. However, it is difficult for the Civil Code of PRC, as a basic law, to cover all aspects of the liability of throwing objects from buildings, and the loopholes that exist in its application still need to be filled through judicial interpretation and the case-by-case trial experience of judges.