【作者】 王静；

【导师】 刘志坚；

【作者基本信息】 兰州大学 ， 法律， 2008， 硕士

【摘要】 本文研究的是铁路高度危险作业的侵权责任。主要内容是探讨铁路高度危险作业侵权责任的归责原则、构成要件、免责事由及责任的承担。引言部分“由案例引发的思考”。笔者例举了两个情况相似的案例,同样是小学生进入铁路站区不慎被火车轧断腿致残,同样向铁路索赔数十万元。一个向铁路运输法院起诉,被判驳回诉讼请求,铁路一分不赔;一个向地方法院起诉,判决铁路赔偿各项费用约30万元。相似的案情为什么铁路法院和地方法院作出内容迥异的裁判结果,由此引发笔者的思考,要从侵权法理论入手,对铁路高度危险作业的侵权责任进行研究。正文第一部分“铁路高度危险作业侵权责任的界定”。本部分介绍了我国铁路的特色、铁路交通事故的一些数字以及关于铁路交通事故的处理的相关规定;界定了铁路交通事故的涵义;对铁路交通事故责任进行了定性;分析了铁路高度危险作业侵权责任与一般侵权责任的区别;同时指出了审理铁路高度危险作业人身损害赔偿案件中出现的问题;确定了研究铁路高度危险作业的侵权责任有必要运用侵权法理论进行研究。第二部分“铁路高度危险作业侵权责任的归责原则”。在归责原则方面,笔者列举了反对铁路高度危险作业的侵权责任适用无过错原则的观点并加以反驳,从不同角度论证了对铁路高度危险作业的侵权责任应坚持无过错归责原则。第三部分“铁路高度危险作业侵权责任的构成要件和免责事由”。在认定构成要件时,由于高度危险作业侵权责任只需具备从事危险作业、造成损害后果和危险作业与损害后果之间有因果关系三个构成要件。因此凡在铁路运营场所发生铁路交通事故,只要受害人证明伤亡或者财产损失与铁路高度危险作业有因果关系,铁路高度危险作业侵权责任即告成立;在认定免责事由时,要将主观和客观结合起来,合理确定受害人的注意义务,进而考察受害人有无故意或过失。只有在不可抗力和受害人故意的情况下,才可免责。第四部分“铁路高度危险作业侵权责任的承担”。本部分主要分析了责任承担的原则,特别探讨了过失相抵原则在铁路高度危险作业侵权责任中的运用。过失相抵原则只有在受害人有重大过失,同时铁路方没有过失或只有一般过失时,才可适用。其次指出了责任承担的方式,针对人身和财产损害,分别提出了承担责任的范围。结论部分,笔者在总结前几部分论证的基础上得出本文结论。认为确定铁路企业危险作业侵权损害赔偿责任时应当适用无过错责任原则,只有在受害人存在故意情况下,铁路企业才可免责。如果铁路方没有过失或只有轻微过失,而受害人具有重大过失时,可以适用过失相抵原则减轻铁路企业的责任。同时也指出了完善铁路高度危险作业侵权责任相关立法的重要意义。更多还原

【Abstract】 What’s this thesis investigated and discussed was the liability of the tort for the highly dangerous work of the railway. The thesis mainly discussed the principles of imputation, the composing essentials, the rules on exemption excuses and undertaking of the liability for the highly dangerous work of the railway.The introduction part was "the thought caused from the cases". The author gave two similar cases of the off-railway casualty. In every case, there was a pupil who entered into the railway station area and whose leg was broken and who was disabled by the train incautiously. And then every pupil claimed for the compensation of a number of ten thousands RMB. One of these cases was proceeded against in the Court of Railway Transport, but the claim was rejected and the railway shouldn’t pay any compensation. The other case was proceeded against in the local court, and the court decreed that the railway should compensate RMB 300,000 because of the various charges. For the similar details of two cases, why did the railway court and the local court make the different judgment? All these caused the thinking of the author, so that the author researched the liability of the tort for the highly dangerous work of the railway from the theory of the tort.The first part was "the defining of the liability of the tort for the highly dangerous work of the railway". This chapter mainly introduced the features of China’s railway, the figures of the off-railway casualty and the corresponding legislations on the treatment of the railway accident. The author defined the meaning of the railway accident and put forward the problems in hearing of the casualty of the liability of the special tort for the highly dangerous work of the railway as well as the judicatory practices. The author thought that it was necessary to utilize the theory of the tort to study the liability of the special tort for the highly dangerous work of the railway.The second part was "the imputation principle of the liability of the tort for the highly dangerous work of the railway". As for the imputation principle of the liability, the author enumerated the points of view against that this liability of the special tort applied to the non-fault liability, and then disproved that it wasn’t right. The author proved the non-fault liability was a general rule for the liability of the special tort for the highly dangerous work of the railway.The third part was "the composing essentials and the rules on exempting excuses of the liability of the tort for the highly dangerous work of the railway". As for the composing essentials, the liability of the tort for the highly dangerous work was made up of three composing essentials , including the highly dangerous work, damage fact, and causation between behaviors of injure and effect of damage. So, the victim of the casualty that happened in working location of railway proved that there was the causal relationship between the casualty and the highly dangerous work of the railway, and the liability of the tort for the highly dangerous work of the railway was established.The fourth part was "the undertaking of the liability of the tort for the highly dangerous railway". This chapter mainly discussed the principle of undertaking responsibility, especially analyzed the application of contributory negligence on the liability of the tort for the highly dangerous work of railway. There was a rule that the principle of contributory negligence was applied if the victim’s gross negligence and the railway part’s general negligence or non-negligence. And the author also pointed out the scope and the form of responsibility of personal damage and possession damage.The conclusion part, based on the sum-up of foregoing parts, concluded that no-fault liability still should be the principle in the field of highly dangerous work of the railway. And further more, railway may exempt excuses for the victim’s intent. And the principle of contributory negligence may be applied if the victim has gross negligence, and the railway part has general negligence or non-negligence. The author also pointed out it was significance of the improvement in the legislation of the tort liability of the highly dangerous work of the railway.更多还原