共同侵权行为及其责任的侵权责任法立法抉择

最高人民法院《关于审理人身损害赔偿案件适用法律若干问题的解释》对共同侵权行为及其连带责任作出了新的规定,其中主要涉及的是共同侵权行为本质特征究竟是主观说还是客观说问题,以及连带责任应当遵循何种规则的问题。这些规定都与传统的规则有所不同,在制定侵权责任法的时候,应当如何抉择?本文的意见是:可以选择共同侵权行为的本质特征的关连共同主张,但是不能采用新的连带责任规则。

The Legislative Choice of Tort Law about the Joint Act of Tort and its Liability

The Supreme People's Court makes some new regulation about the joint act of tort and its joint and several liabilities in the Interpretation of Applicable Legal Issues in Judging Personal Injury Compensation Cases. It mainly refers to the issues about whether the innate character of the joint act of tort is subjectivism or objectivism,and,which kind of rules the joint and several liabilities should follow.Both of them are different from traditional ones.When we make the tort law,how should we choose? The answer to this question in my article is that we are for the claim about the connection joint of the innate character of the joint act of tort,but we can't adopt the new rules about joint and several liabilities.