美國侵權法中的因果關系理論
發(fā)布時間：2019-06-21 02:40
【摘要】： 隨著現(xiàn)代科技的飛速發(fā)展,因果關系的復雜性推到了極致,從而大大增加了因果關系認定的難度。按美國法因果關系判斷的通說,采取“兩分法”：事實上的因果關系和法律上的因果關系。事實上的因果關系是用于探討被告行為是否實際上為損害發(fā)生的原因,若沒有被告的行為,損害是否仍將發(fā)生；而法律上的因果關系是屬于法律政策的考量,主要是以限制被告責任來達到公平、正義、社會需求以及法律規(guī)范的目的。 事實上的因果關系又稱事實原因,許多學者試圖給事實原因下一個確切的定義,或者描述它所服務的侵權行為法律目的。馬龍和格林是其中最為成功的,他們的學說成為了當代美國侵權行為法的基礎。格林教授提出“義務—危險分析”理論,將廣義的因果關系被分為兩部分：事實原因(狹義的因果關系)和義務。雖然同為義務—危險分析的擁護者,馬龍不同意格林事實原因的分析以及他的推論,馬龍認為因果關系并非純粹的事實問題,它需要政策的介入。兩者最大的區(qū)別在于事實原因是否包括政策因素。筆者認為完全將價值判斷從事實中剝離出來是不現(xiàn)實的,但是格林的分離原因理論是一個有效的分析工具,有利于實踐操作。這不是讓實驗者們忽視政策的限制,而是說政策和事實應該被分開,事實上的因果關系應該絕對地避免政策的介入。 事實原因的判斷標準包括：第一,“若無,則不”規(guī)則即美國法上的"but for rule",也稱為必要條件理論。是指“若無被告的行為(作為或不作為),則損害將不會發(fā)生,該行為即為損害的原因。反之,若無被告的行為,損害仍會發(fā)生,則被告的行為并非損害的原因�！钡诙�,實質因素理論,是指“被告的侵權行為對于損害的發(fā)生必須為一項實質因素,如果即使行為人不存在過失,該傷害也會發(fā)生,則行為人的過失行為不是造成他人受傷害的實質因素。”第三,復合原因理論,也稱為充分條件的必要因素理論。所謂充分條件是指復合原因互相作用而導致了損害結果的發(fā)生,但任何一個原因對于結果的發(fā)生僅為可能性。如甲乙共同作用而導致了丙,分開來看甲可能但不一定引起丙,乙可能但不一定引起丙,但甲乙共同作用則導致了丙這一結果的產(chǎn)生。第四,市場份額理論,這一理論適用于產(chǎn)品責任,若原告能證明造成其損害的產(chǎn)品出自某個制造商時,該制造商即成立侵權責任。但如果生產(chǎn)同類產(chǎn)品的制造商過多導致原告無法確定特定的制造商時,美國多數(shù)法院的方法是按照該產(chǎn)品各個制造商所占市場份額來確認責任。第五,減少有利機會理論,該理論專門適用于醫(yī)療糾紛案件,是實質因素理論的一個分支。 法律上的因果關系又稱最近原因,該理論為責任設立了邊界。雖然對其定義仍然眾說紛紜,但是對它的準確理解至少應當包含以下內容：第一,近因必為事實原因的一部分,也就是說要為近因必須先滿足事實原因的判斷準則；第二,近因必包含有價值判斷,該價值判斷主要是指對于美國侵權行為法法律政策的考量,并且這一考量貫穿始終,是最根本的內容；第三,由法律政策考量而衍化出的近因判斷準則。 法律政策是指同公共利益和社會根本問題相關,本質上反映了社會或團體的總體目標,目的是使團體成員的社會、經(jīng)濟或政治福利得以整體提升,即使這樣可能會導致對個人權利的限制,政策也會被貫徹。本文從法律責任的不同根據(jù)；限制責任的那些因素；訴訟中因果關系問題的表達程式；對這樣的事項證明責任的負擔幾個方面論述政策影響責任的方法。 最近原因的判斷標準分為：第一,直接結果規(guī)則,也稱直接原因規(guī)則,包含兩層意思：①行為人只對直接引起損害結果的行為負責,這意味著行為和結果之間不能有替代因素出現(xiàn)；②只要該行為直接引起損害后果,無論該結果是否可以預見,該行為都是損害結果發(fā)生地近因。直接結果規(guī)則現(xiàn)在多用于故意侵權案件,其他案件中大部分法院在考量因果關系和確認責任時還是以可預見性規(guī)則為標準。第二,可預見性規(guī)則,指行為人作為有正常智力和謹慎的人應當合理地預見到它的過失行為會造成對他人的危險(無論是由于事件或類似情況造成),行為人自己相信會發(fā)生什么或行為人預見由于他造成的危險情況會造成怎樣的損害,則不予考慮,不法行為人不對只是可能產(chǎn)生的結果承擔責任,而只對依普通或通常經(jīng)驗判斷可能產(chǎn)生的結果承擔責任。本文從可預見性規(guī)則的內容及意義、在審判實踐中的運用、在介入原因中的作用三方面分別論述。 要討論近因就不得不提到遠因,近因理論相當于在眾多事實原因中對選出符合其標準的法律原因,也即對責任進行限制,而遠因原則則相當于在近因原則的基礎上進一步限制責任。遠因原則的基礎為普通法系的無過錯即無責任原則,其顧名思義即為某一行為相較于那個“最近的”原因對于損害結果是間接的、不可預見的、“遙遠的”,實質是在近因原則排除的基礎之上,對于侵權責任作出進一步的限制,再通過價值判斷等方式排除其認定為“遙遠的”聯(lián)系,最終得出最近的法律上的原因。該原則是法律政策在因果關系理論中的集中體現(xiàn),其對政策的選擇主要體現(xiàn)在排除獨立的介入因素(原告所受損害與被告行為之間)、避免對同一損害進行多重賠償、避免過于大量的訴訟、排除間接經(jīng)濟損失四方面,另外本文還通過“不受歡迎的被告”作為實際案例分析上訴四方面。 最后,本文提出美國法中因果關系理論的兩分法、事實原因和法律原因的判斷標準、遠因原則對于法律政策的選擇等對我國的借鑒意義。
[Abstract]:With the rapid development of modern science and technology, the complexity of causality has been pushed to the extreme, which greatly increases the difficulty of the causality determination. ""two-way method": the de facto causality and the causal relationship in the law," he said in accordance with the U.S. law. The fact that the causal relationship is used to investigate whether the defendant's behavior is actually the cause of the damage, and if there is no defendant's conduct, the damage will still occur; and the legal causal relationship is the consideration of the legal policy, mainly to limit the defendant's responsibility to achieve fairness and justice, The purpose of the social needs and the legal norms. In fact, the cause of the causal relationship is also known as the fact that many scholars try to give the facts the exact definition, or describe the tort law it serves. The purpose of the law is that Marlon and Green are the most successful, and their doctrine has become a contemporary American tort law. On the basis of Professor Green's theory of "The risk analysis of the obligation", the general causal relationship is divided into two parts: the fact causes (the narrow causal relationship) As an advocate of the risk analysis of the obligation, Marlon does not agree with the analysis of the cause of the fact of Green's facts and his reasoning that the causality is not a purely factual issue and that it needs a policy The greatest difference between the two lies in the fact that the fact is that the cause of the fact is political The author thinks that it is not realistic to judge the value of the value from the fact, but the theory of the separation of Green is an effective analytical tool, which is beneficial to the real This is not to let the experimenter ignore the limits of the policy, but to say that the policies and the facts should be separated, and the de facto causality should definitely avoid the policy The criteria for judging the facts of the fact include: first, if none, then no rule is the "cut for rule" in the United States, and also said As a necessary condition, the theory of the second and the essential factors of the "If there is no defendant's act (act or omission), the damage will not occur and the act is the cause of the damage. On the other hand, if there is no defendant, the damage will still occur, and the defendant's conduct is not the cause of the damage." refers to the third and the compound cause theory of the "The defendant's violation must be a substantial factor in the occurrence of the damage, and if the perpetrator does not have the fault, the injury will also take place, and the fault of the actor is not a substantial factor in the harm of others.", which is also called the sufficient condition The necessary factor theory. The so-called sufficient condition means that the compound causes the occurrence of the damage result, but any one reason is for the result. The occurrence is only the possibility. For example, the common action of the methyl ethyl group leads to the fact that the A and B may, but not necessarily cause, the C, B may, but not necessarily cause, C, but the common action of the methyl ethyl group results in the C. Fourth, market share theory, this theory is applicable to product liability, if the plaintiff can prove that the product that caused the damage is from a manufacturer, the manufacturer The creation of a tort liability. However, if the manufacturer of the same type of similar product causes the plaintiff to be unable to determine the particular manufacturer, the method of most of the courts in the United States is in accordance with the market of the various manufacturers of the product Share to confirm responsibility. Fifth, reduce the theory of favorable opportunity, which is applicable to medical disputes, and is a real factor. A branch of the theory. The causality of the law is also known as the most recent reason. The theory is the responsibility to set up a boundary. Although the definition of the boundary is still numerous, its precise understanding should at least include the following: first, the near-cause must be part of the fact, that is, it is a criterion for judging the fact that the fact must first be met; and secondly, Because of the value judgment, the value judgment mainly refers to the consideration of the law policy of the American tort law, and the consideration is the most fundamental content throughout the time; and thirdly, it is considered by the legal policy The law policy, which is related to the public interest and the fundamental problem of the society, essentially reflects the overall objective of the society or group, and the purpose is to make the social, economic or political well-being of the members of the group be promoted as a whole, even if the social, economic or political welfare of the group is promoted as a whole. This may result in a pair of The restriction of the individual's rights and the policy will also be carried out. This article is based on the different basis of the legal responsibility, the factors which limit the responsibility, the expression of the cause and effect in the litigation, and the burden of the responsibility for such matters. Several aspects of the method of policy influence responsibility are discussed. The criteria for judging the most recent reason are: first, the direct result rule, and the direct cause rule, which includes two layers: the perpetrator only is responsible for the act directly causing the damage result, means that there is no substitute for the act and the result, and as long as the act directly causes the consequences of the damage, whether or not the result is It is foreseen that the act is the near result of the damage result. The direct result rule is now used for intentional tort cases, and most of the other cases are considering the cause and effect The rule of predictability is the standard of the rule of predictability. The second, the rule of predictability, means that the actor, as a person with normal intelligence and care, should reasonably see that the act of the fault would cause the harm to others. (whether due to an incident or a similar situation), the perpetrator himself is confident that what is going to happen or what the perpetrator can foresee as a result of his or her dangerous situation will not be taken into account, and that the wrongdoer is not liable for the consequences that may arise, but only to the Epp The responsibility of the result of a judgment that is likely to be produced. This article, from the content and meaning of the rules of predictability, is in the practice of the trial. The three aspects of the application and the effect of the intervention are discussed separately. The close cause of the discussion has to be mentioned, and the near-cause theory is equivalent to the legal reasons for the selection of the criterion in many facts, namely, the limitation of the responsibility, and far from the other. The principle is equivalent to the further limitation of the liability on the basis of the principle of near-law. The principle is based on the principle of no fault of the common law system, that is, the principle of no responsibility, and its name implies that the result of the damage is indirect and unforeseeable for a certain behavior compared with that of the "most recent". ", in essence, on the basis of the exclusion of the principle of the near-cause, further limitation on the liability of the infringement, and the determination as" trunk>" farway by means of value judgment or the like. " contact, resulting in the most recent legal reasons. The principle is the reflection of the legal policy in the theory of causality, and its choice of policy is mainly reflected in the exclusion of independent intervention factors (between the injury of the plaintiff and the act of the defendant), Avoid multiple compensation for the same damage, avoid excessive litigation, and eliminate the four aspects of indirect economic loss. Ant " is the four aspects of the analysis of the actual case. In the end, this paper puts forward the two-method, the fact and the legal reason for the theory of causality in the American law.
【學位授予單位】：浙江工商大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D971.2
本文編號：2503720
[Abstract]:With the rapid development of modern science and technology, the complexity of causality has been pushed to the extreme, which greatly increases the difficulty of the causality determination. ""two-way method": the de facto causality and the causal relationship in the law," he said in accordance with the U.S. law. The fact that the causal relationship is used to investigate whether the defendant's behavior is actually the cause of the damage, and if there is no defendant's conduct, the damage will still occur; and the legal causal relationship is the consideration of the legal policy, mainly to limit the defendant's responsibility to achieve fairness and justice, The purpose of the social needs and the legal norms. In fact, the cause of the causal relationship is also known as the fact that many scholars try to give the facts the exact definition, or describe the tort law it serves. The purpose of the law is that Marlon and Green are the most successful, and their doctrine has become a contemporary American tort law. On the basis of Professor Green's theory of "The risk analysis of the obligation", the general causal relationship is divided into two parts: the fact causes (the narrow causal relationship) As an advocate of the risk analysis of the obligation, Marlon does not agree with the analysis of the cause of the fact of Green's facts and his reasoning that the causality is not a purely factual issue and that it needs a policy The greatest difference between the two lies in the fact that the fact is that the cause of the fact is political The author thinks that it is not realistic to judge the value of the value from the fact, but the theory of the separation of Green is an effective analytical tool, which is beneficial to the real This is not to let the experimenter ignore the limits of the policy, but to say that the policies and the facts should be separated, and the de facto causality should definitely avoid the policy The criteria for judging the facts of the fact include: first, if none, then no rule is the "cut for rule" in the United States, and also said As a necessary condition, the theory of the second and the essential factors of the "If there is no defendant's act (act or omission), the damage will not occur and the act is the cause of the damage. On the other hand, if there is no defendant, the damage will still occur, and the defendant's conduct is not the cause of the damage." refers to the third and the compound cause theory of the "The defendant's violation must be a substantial factor in the occurrence of the damage, and if the perpetrator does not have the fault, the injury will also take place, and the fault of the actor is not a substantial factor in the harm of others.", which is also called the sufficient condition The necessary factor theory. The so-called sufficient condition means that the compound causes the occurrence of the damage result, but any one reason is for the result. The occurrence is only the possibility. For example, the common action of the methyl ethyl group leads to the fact that the A and B may, but not necessarily cause, the C, B may, but not necessarily cause, C, but the common action of the methyl ethyl group results in the C. Fourth, market share theory, this theory is applicable to product liability, if the plaintiff can prove that the product that caused the damage is from a manufacturer, the manufacturer The creation of a tort liability. However, if the manufacturer of the same type of similar product causes the plaintiff to be unable to determine the particular manufacturer, the method of most of the courts in the United States is in accordance with the market of the various manufacturers of the product Share to confirm responsibility. Fifth, reduce the theory of favorable opportunity, which is applicable to medical disputes, and is a real factor. A branch of the theory. The causality of the law is also known as the most recent reason. The theory is the responsibility to set up a boundary. Although the definition of the boundary is still numerous, its precise understanding should at least include the following: first, the near-cause must be part of the fact, that is, it is a criterion for judging the fact that the fact must first be met; and secondly, Because of the value judgment, the value judgment mainly refers to the consideration of the law policy of the American tort law, and the consideration is the most fundamental content throughout the time; and thirdly, it is considered by the legal policy The law policy, which is related to the public interest and the fundamental problem of the society, essentially reflects the overall objective of the society or group, and the purpose is to make the social, economic or political well-being of the members of the group be promoted as a whole, even if the social, economic or political welfare of the group is promoted as a whole. This may result in a pair of The restriction of the individual's rights and the policy will also be carried out. This article is based on the different basis of the legal responsibility, the factors which limit the responsibility, the expression of the cause and effect in the litigation, and the burden of the responsibility for such matters. Several aspects of the method of policy influence responsibility are discussed. The criteria for judging the most recent reason are: first, the direct result rule, and the direct cause rule, which includes two layers: the perpetrator only is responsible for the act directly causing the damage result, means that there is no substitute for the act and the result, and as long as the act directly causes the consequences of the damage, whether or not the result is It is foreseen that the act is the near result of the damage result. The direct result rule is now used for intentional tort cases, and most of the other cases are considering the cause and effect The rule of predictability is the standard of the rule of predictability. The second, the rule of predictability, means that the actor, as a person with normal intelligence and care, should reasonably see that the act of the fault would cause the harm to others. (whether due to an incident or a similar situation), the perpetrator himself is confident that what is going to happen or what the perpetrator can foresee as a result of his or her dangerous situation will not be taken into account, and that the wrongdoer is not liable for the consequences that may arise, but only to the Epp The responsibility of the result of a judgment that is likely to be produced. This article, from the content and meaning of the rules of predictability, is in the practice of the trial. The three aspects of the application and the effect of the intervention are discussed separately. The close cause of the discussion has to be mentioned, and the near-cause theory is equivalent to the legal reasons for the selection of the criterion in many facts, namely, the limitation of the responsibility, and far from the other. The principle is equivalent to the further limitation of the liability on the basis of the principle of near-law. The principle is based on the principle of no fault of the common law system, that is, the principle of no responsibility, and its name implies that the result of the damage is indirect and unforeseeable for a certain behavior compared with that of the "most recent". ", in essence, on the basis of the exclusion of the principle of the near-cause, further limitation on the liability of the infringement, and the determination as" trunk>" farway by means of value judgment or the like. " contact, resulting in the most recent legal reasons. The principle is the reflection of the legal policy in the theory of causality, and its choice of policy is mainly reflected in the exclusion of independent intervention factors (between the injury of the plaintiff and the act of the defendant), Avoid multiple compensation for the same damage, avoid excessive litigation, and eliminate the four aspects of indirect economic loss. Ant " is the four aspects of the analysis of the actual case. In the end, this paper puts forward the two-method, the fact and the legal reason for the theory of causality in the American law.
【學位授予單位】：浙江工商大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D971.2
【參考文獻】
相關期刊論文 前2條
1 王學梅;美國侵權法上的“最近原因”理論[J];黑龍江省政法管理干部學院學報;2003年06期
2 呂彥;美國侵權行為法判斷因果關系的規(guī)則與實踐[J];現(xiàn)代法學;1998年06期
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