民事责任与义务的界分问题再思考

民事责任是违反民事义务的法律后果之通说不能妥当解释责任的强制性问题,而将义务与责任划分的界线确定在裁判文书生效时,方可将责任与强制性直接联系起来。裁判文书生效之前当事人所负担者均应定性为义务,对此还应当以义务违反时为界再划分为原本义务和后发义务。违反原本义务所直接产生的后果只是对其更不利益的后发义务,而尚非得被强制承担的责任,经生效司法裁判确定后方可谓之责任;违反原本义务者在经生效司法裁判确认之前仅是＂责任嫌疑人＂,之后才可谓之＂责任人＂。因此,民事责任应界定为：民事主体确定地违反民事义务或者在法律有特别规定的情况下得被强制承担的法律后果。

Reconsideration on the Division of Civil Liability and Duty

The prevailing viewpoint that civil liability is the legal consequence of violating civil duty does not accurately explain its compulsory character. The line of demarcation between liability and duty should be drown at the time when the adjudication comes into force. What the party shoulders should be called duty before the adjudication coming into force while it should be regarded as liability after that time. Furthermore, duty can be divided into original duty and derivative duty. The latter is the consequence of violating the former one. In response, the party who has violated the original duty should be called ＂liability suspect＂, comparing to the ＂liability holder＂. Therefore, civil liability should be defined as the legal consequence that the party definitely violating civil duty or under special regulations otherwise has to shoulder.