【作者】 孙大伟；

【导师】 马新彦；

【作者基本信息】 吉林大学 ， 民商法学， 2009， 博士

【副题名】兼论对我国侵权立法的启示

【摘要】 市场份额规则产生于美国普通法侵权诉讼中。为了实现对DES案件受害人的救济,该规则对传统侵权法因果关系规则进行了修正。在市场份额规则产生和发展的过程中,美国各级法院通过判例确立了不同的市场份额规则模式。在实践中,两种规则模式均获得了不同程度的适用。在理论层面,两种市场份额规则模式分别获得了经济分析理论和矫正正义理论的支撑,这也导致了两种规则模式的深层次冲突。对此,本文试图寻找一种有效的侵权法解释理论,并通过该理论对市场份额规则进行有效的解释,从而消除两种规则模式之间的冲突,并使市场份额规则与普通法侵权规则相协调。此外,本文也试图借助证据共同体理论对市场份额规则的运行、制度设计以及相关问题加以解决。最后,本文讨论了在我国侵权法中确立市场份额规则的必要性和可行性,并对在我国确立市场份额规则的立法设计和技术难点进行了分析。更多还原

【Abstract】 The market share liability is a revolutionary rule in American tort law and is a modification to the rule of causation of tort law. In this thesis we find that there are two different modes of rules of market share liability in American tort law and there are conflicts in the level of theory and practice of market share liability. The studies of American researchers focus on that how to accommodation of the market share liability and tort law. But in this thesis we think that an effective theory of explanation of tort law and using this theory to explain market share liability is the correct resolution to the conflicts of different modes of rule and accommodation of the market share liability and tort law.In the first chapter, we discuss the meaning of the market share liability and the background of this rule, and comment the actuality of the research. We also deal with the researches about market share liability and find that these researches are mostly focused on accommodation of the market share liability and tort law. At the same time, we also discuss the structure of the argumentation and make some limits.In the second chapter, we discuss the course of establishment of market share liability and the other rules of common law. Market share liability was established in DES cases, so we study DES cases firstly. In DES cases, causation would be the obstacle of compensatory of damage to plaintiffs. The courts could not use the alternative liability, concert action theory and enterprise liability in DES cases. On this background market share liability was established and became a modification to causation.In the third chapter, we discuss the different patterns of market share liability and its basement of theories. In the course of establishment of market share liability, Sindell v. Abbott Labs. and Hymowitz v. Eli Lilly & Co. were the landmarks which have established two different modes. We find that the reason for the difference of two modes is that each mode of market share liability is based on a theory of explanation of tort law. Although two modes are both adopted in America, they contradict with each other in the level of theory. The conflict make that market share liability could not be justified and accommodated to the rules of tort law. These make many courts in America suspected about market share liability. Only through the discussion on the level of theory, can we resolve this puzzledom efficiently.In the fourth chapter, we discuss the theory of tort law. In America, the theory of economic analysis represented by Guido Calabresi and Richard A. Posner has taken an important position and these scholars use that concept and the mode of economic analysis to reconstruct the theory of tort law. At the same time, corrective justice theory represented by Jules Coleman, George P. Fletcher and Richard Epstein is also a challenge to the theory of economic analysis. From the perspective of corrective justice, the scholars of the theory of economic analysis could not explain why plaintiff and defendant are the most important in tort law and why particular plaintiff is contacted with particular defendant. Paradoxically, both of the theories could support the different mode of market share liability. So the conflict of the different modes of market share liability is transferred into the conflict of the different theory of tort law.Therefore we attempt to adopt an effective theory of tort law to be the precondition of analyzing market share liability. On the basement of the study to different theories of tort law, we attempt to choose a more effective theory of explanation of tort law and make tort law be based on it. Furthermore, we will use this theory to explain market share liability. We will learn the two theories through two approaches. Firstly, we will discuss which theory could explain tort law more effectively, so the more effective theory could be justified. This approach is based on explanation of the tort law itself and we could test the theory through efficiency and fitness of the explanation. Secondly, we will test the efficiency of the theories through practice. On the basis of the analysis of tort law and No-fault compensation system, we could find which system could regulate practice more effectively. Through these approaches, we should find a more effective theory of explanation of tort law.In the fifth chapter, we learn that how to apply corrective justice theory to the explanation of tort law. We compare the formal approach and substantial approach and seek an appropriate solution. We contact market share liability with alternative liability through the theory of evidential group. We also learn the critical problem of market share liability, such as the mode, function and system of market share liability.In the sixth chapter, we discuss the necessary and feasibility of the establishment of market share liability in Chinese tort law. Now there are a lot of cases of product liability caused by poisoned and injurant substance in China. In these cases, because the industrial product is common and substitutable, we could not find out which enterprise’product caused the damage, such as the case of melamine. So we think that there is a big room for market share liability in china. But there is no rule in Chinese law to substitute market share liability. So we should establish some rules to remedy the victims in the cases caused by poisoned and injurant substance. So we discuss the feasible approach of establishing market share liability in China and study the problem and the solution in this course.更多还原