論補(bǔ)充責(zé)任
發(fā)布時(shí)間：2018-10-08 10:32
【摘要】： 補(bǔ)充責(zé)任有兩種含義。狹義的補(bǔ)充責(zé)任指補(bǔ)充責(zé)任人承擔(dān)第一責(zé)任人賠償不能部分的損害、并可于賠償后向第一責(zé)任人全額追償?shù)呢?zé)任形態(tài)。廣義的補(bǔ)充責(zé)任指補(bǔ)充責(zé)任人承擔(dān)第一義務(wù)人賠償不能部分的損害、但賠償后不得向第一義務(wù)人追償?shù)呢?zé)任形態(tài)。 有關(guān)補(bǔ)充責(zé)任的研究主要集中在兩方面:補(bǔ)充責(zé)任人承擔(dān)責(zé)任的依據(jù),以及補(bǔ)充責(zé)任人承擔(dān)補(bǔ)充責(zé)任的依據(jù)。前者是責(zé)任的依據(jù),即補(bǔ)充責(zé)任人因何原因承擔(dān)責(zé)任;后者是責(zé)任形態(tài)的依據(jù),即在確定責(zé)任人應(yīng)承擔(dān)責(zé)任后,確定其承擔(dān)補(bǔ)充責(zé)任的依據(jù)。 本文從我國有關(guān)補(bǔ)充責(zé)任的規(guī)定及學(xué)說出發(fā),分析我國補(bǔ)充責(zé)任的發(fā)生根據(jù)及適用情形,并以此為基礎(chǔ),考察國外(主要為美國及歐洲大陸)對(duì)這些情形的規(guī)定及處理方式,同時(shí)考察國外的補(bǔ)充責(zé)任制度,以了解世界主要法域補(bǔ)充責(zé)任的立法及學(xué)說現(xiàn)狀。可以發(fā)現(xiàn):美國及歐洲大陸不存在與中國類似的補(bǔ)充責(zé)任制度,立法與學(xué)說對(duì)各類多數(shù)人責(zé)任案件均等同視之,忽視了不同案件之間的差異性,制度設(shè)計(jì)粗糙,可能導(dǎo)致不公正的后果;而中國雖有補(bǔ)充責(zé)任的規(guī)定,但散見于各項(xiàng)具體制度中,尚無一般理論,此外,對(duì)補(bǔ)充責(zé)任依據(jù)的研究不夠深入。 因此,本文分析了補(bǔ)充責(zé)任制度的依據(jù),包括補(bǔ)充責(zé)任人承擔(dān)責(zé)任的依據(jù)以及補(bǔ)充責(zé)任人承擔(dān)補(bǔ)充責(zé)任的依據(jù)。就前一部分,筆者根據(jù)補(bǔ)充責(zé)任的不同情形,推出了補(bǔ)充責(zé)任人違反義務(wù)的一般理論。就后一部分,筆者從兩方面展開討論: 一方面,從補(bǔ)充責(zé)任的不同情形出發(fā),分析其案件構(gòu)成的特點(diǎn),進(jìn)而初步推導(dǎo)出其責(zé)任形態(tài)的特點(diǎn);另一方面,筆者列舉了全部的多數(shù)人責(zé)任形態(tài),包括連帶責(zé)任(連帶責(zé)任又包括狹義的連帶責(zé)任以及廣義的連帶責(zé)任,后者即不真正連帶責(zé)任)、共同責(zé)任、按份責(zé)任、按份-連帶責(zé)任以及補(bǔ)充責(zé)任,通過比較不同責(zé)任形態(tài)的特點(diǎn),并與前一方面的分析相對(duì)照,根據(jù)錯(cuò)責(zé)相一致原則及其他利益考量,最終推出了補(bǔ)充責(zé)任發(fā)生依據(jù)的一般理論。即補(bǔ)充責(zé)任的發(fā)生根據(jù)是:作為義務(wù)人應(yīng)對(duì)因自己的過錯(cuò)致使積極加害人加害受害人承擔(dān)補(bǔ)充賠償責(zé)任;狹義的補(bǔ)充責(zé)任的發(fā)生根據(jù)是:作為義務(wù)人應(yīng)對(duì)積極加害人利用自身的過錯(cuò)加害受害人承擔(dān)補(bǔ)充責(zé)任,追償權(quán)的依據(jù)在于積極加害人利用了作為義務(wù)人的過錯(cuò),二者的過錯(cuò)程度懸殊、性質(zhì)迥異。
[Abstract]:Supplementary liability has two meanings. Supplementary liability in a narrow sense refers to the liability pattern in which the compensation of the first responsible person can not be partial and can be fully recovered from the first responsible person after the compensation. In a broad sense, supplementary liability refers to the liability form in which the compensation of the first obligor cannot be partially compensated by the person responsible for supplementary liability, but the liability form of the compensation shall not be recovered from the first obligor. The research on supplementary responsibility mainly focuses on two aspects: the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility of the supplementary responsible person. The former is the basis of responsibility, that is to say, the supplementary responsible person bears the responsibility for what reason; the latter is the basis of the form of responsibility, that is, after determining that the responsible person should bear the responsibility, the latter is the basis on which the responsible person should assume the supplementary responsibility. Based on the provisions and theories of supplementary liability in China, this paper analyzes the basis and application of supplementary liability in China, and on the basis of this, investigates the regulations and methods of dealing with these situations abroad (mainly the United States and continental Europe). At the same time, the foreign supplementary liability system is investigated to understand the current situation of the legislation and doctrine of supplementary liability in major jurisdictions of the world. It can be found that the United States and the European continent do not have similar supplementary liability systems as China, and the legislation and doctrine treat the cases of majority liability equally, ignoring the differences between different cases, and the system design is rough. Although China has the stipulation of supplementary liability, there is no general theory in every concrete system, besides, the research on the basis of supplementary liability is not deep enough. Therefore, this paper analyzes the basis of the supplementary liability system, including the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility. In the first part, according to the different situations of supplementary liability, the author puts forward the general theory of the breach of obligation by supplementary liability. In the latter part, the author discusses from two aspects: on the one hand, from the different situations of supplementary responsibility, analyzes the characteristics of its case composition, and then derives the characteristics of its responsibility form; On the other hand, the author enumerates all the forms of majority liability, including joint liability (joint liability includes narrow sense of joint and several liability and broad sense of joint liability, the latter is not true joint liability), common responsibility, according to the share responsibility, By comparing the characteristics of different forms of liability and comparing with the previous analysis, according to the principle of consistent liability and other benefit considerations, the general theory of the occurrence of supplementary liability is put forward. That is to say, the basis of supplementary liability is that the obligor should be responsible for the compensation of the victim because of his fault. The basis of supplementary liability in the narrow sense is that the obligor should bear the supplementary responsibility for the victim who takes advantage of his fault, and the basis of the right of recourse is that the obligor has taken advantage of the fault of the obligor. The degree of fault between the two is very different.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2007
【分類號(hào)】：D913
本文編號(hào)：2256443
[Abstract]:Supplementary liability has two meanings. Supplementary liability in a narrow sense refers to the liability pattern in which the compensation of the first responsible person can not be partial and can be fully recovered from the first responsible person after the compensation. In a broad sense, supplementary liability refers to the liability form in which the compensation of the first obligor cannot be partially compensated by the person responsible for supplementary liability, but the liability form of the compensation shall not be recovered from the first obligor. The research on supplementary responsibility mainly focuses on two aspects: the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility of the supplementary responsible person. The former is the basis of responsibility, that is to say, the supplementary responsible person bears the responsibility for what reason; the latter is the basis of the form of responsibility, that is, after determining that the responsible person should bear the responsibility, the latter is the basis on which the responsible person should assume the supplementary responsibility. Based on the provisions and theories of supplementary liability in China, this paper analyzes the basis and application of supplementary liability in China, and on the basis of this, investigates the regulations and methods of dealing with these situations abroad (mainly the United States and continental Europe). At the same time, the foreign supplementary liability system is investigated to understand the current situation of the legislation and doctrine of supplementary liability in major jurisdictions of the world. It can be found that the United States and the European continent do not have similar supplementary liability systems as China, and the legislation and doctrine treat the cases of majority liability equally, ignoring the differences between different cases, and the system design is rough. Although China has the stipulation of supplementary liability, there is no general theory in every concrete system, besides, the research on the basis of supplementary liability is not deep enough. Therefore, this paper analyzes the basis of the supplementary liability system, including the basis of the responsibility of the supplementary responsible person and the basis of the supplementary responsibility. In the first part, according to the different situations of supplementary liability, the author puts forward the general theory of the breach of obligation by supplementary liability. In the latter part, the author discusses from two aspects: on the one hand, from the different situations of supplementary responsibility, analyzes the characteristics of its case composition, and then derives the characteristics of its responsibility form; On the other hand, the author enumerates all the forms of majority liability, including joint liability (joint liability includes narrow sense of joint and several liability and broad sense of joint liability, the latter is not true joint liability), common responsibility, according to the share responsibility, By comparing the characteristics of different forms of liability and comparing with the previous analysis, according to the principle of consistent liability and other benefit considerations, the general theory of the occurrence of supplementary liability is put forward. That is to say, the basis of supplementary liability is that the obligor should be responsible for the compensation of the victim because of his fault. The basis of supplementary liability in the narrow sense is that the obligor should bear the supplementary responsibility for the victim who takes advantage of his fault, and the basis of the right of recourse is that the obligor has taken advantage of the fault of the obligor. The degree of fault between the two is very different.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2007
【分類號(hào)】：D913
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前6條
1 李英姿;不作為侵權(quán)責(zé)任研究[D];鄭州大學(xué);2011年
2 陳麗;論公共場(chǎng)所的安全保障義務(wù)[D];華東政法大學(xué);2008年
3 楊琳;侵權(quán)責(zé)任中的補(bǔ)充責(zé)任研究[D];華東政法大學(xué);2008年
4 邢瑤;補(bǔ)充責(zé)任中的先訴抗辯權(quán)研究[D];鄭州大學(xué);2009年
5 陸望舒;《侵權(quán)責(zé)任法》中補(bǔ)充責(zé)任問題探析[D];華東政法大學(xué);2012年
6 劉巧蕓;論勞務(wù)派遣中的雇主責(zé)任[D];吉林大學(xué);2012年
，本文編號(hào)：2256443
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