论民法上的合法替代行为抗辩

合法替代行为抗辩是所有责任法领域的问题.就其在责任法中的归属而言,应采违法性关联说,即属于损害归责的问题.在确定是否认可合法替代行为抗辩时,应考虑法定义务或合同义务的规范目的.而且,被告必须证明,合法替代行为必然导致同样的损害.针对实践中的主要案件类型,即违反告知义务的案件、违反程序性规定的案件和违反职务上义务的案件,应当分别情形确定妥当的解决方案.

The Defense of Lawful Alternative in Civil Law

The defense of lawful alternative behavior is an issue in the field of liability law, which should be viewed as a problem of relation of unlawfulness, in other words, an issue about attribution of damage. When the judge accept this de- fense of the defendant, the criterion is the protective purpose of a legal rule or contract. The defendant should prove that the same damage will have surely be caused when he acted lawfully. There are three typical case groups, namely the cases of informing obligation, the cases of breach of procedural rules, and the cases of violation of official duties. Sound solutions for different case groups are to be considered.