侵权补充责任之理性审思与解释适用

《侵权责任法》仅列举了侵权补充责任的数类适用情形,缺乏统一的客观适用标准,亦未明确具体的适用规则.责任分担是责任成立的后续命题,不应再以责任构成原理为立论基点,而应以外部被侵权人受偿及内部各侵权人终局责任分担为考量因素.按份、连带责任的终局责任分担困境及不真正连带责任全额赔偿的僵化,使得补充责任不可或缺.由该正当性可推知,侵权补充责任应适用于“具有全部原因力的直接作为侵权＋过失不作为侵权”之一般情形.补充责任人应承担与过错、原因力相当的补充责任,并可向直接责任人全额追偿.

Reflection and Construction on Supplementary Liability in Tort Law

Tort Law only lists several circumstances to which the supplementary liability shall apply, lac- king of a unified objective applicable standards, and relative specific rules are not clear. Apportionment of tort liability is a follow-up question of finding of tort liability, which should take account for compensation for vic- tims and final apportionment of liability among infringers, rather than basing on principles of finding of tort lia- bility. It can be deduced from which absolutely causes damage afford damages which are adapt ers who are finally liable for its legitimacy reason that supplementary liability should apply to ＂active tort ＋ negative tort＂. Infringers who are liable for supplementary liability should to their negligence and causation; they can recover damages afforded by infring- damage ; they can bring a suit referring to general guarantee except the specificity because of uncertainty of active infringers.