【作者】 魏华；

【导师】 徐卫东；

【作者基本信息】 吉林大学 ， 法学理论， 2009， 博士

【摘要】 传统的侵权行为法规则之下,损失分配的基本模式都是加害人承担主义。但是由于侵权责任在制度上的局限,使得受害人的赔偿完全依赖于加害人的财产能力。在我国的具体实践中,传统的侵权责任制度不但承担了补偿受害人损失的责任,不少情况下还被迫承担了分散损失的重任,导致侵权责任被不适当地扩大化,其结果是产生了一系列的负面影响。在现代社会中,损害分散的思想已逐渐成为侵权法的思考方式,在侵权法之外,逐渐发展出新的损失分散机制,例如社会保障、救助基金等等,来实现损失的社会化,从而实现及时、充分地补偿受害人的目的。损失社会化的理论基础在于分配正义。用分配正义观来看待侵权责任,就不仅要考虑加害人的行为造成了损害这一事实本身,还要考虑各方当事人所处的地位和所具有的能力,责任负担的分配主要考虑加害人和受害人各方分散损失的能力。我国当前的侵权责任、社会保险、责任保险、社会救助基金、第一方保险等机制需要加以改进,以建立一个多种机制协调配合的损失分配体系。更多还原

【Abstract】 Under the traditional tort law, whether the principle of fault liability, or no-fault liability principle, the basic pattern of distribution losses are borne abusers. However, due to infringement liability limitations in the system, making the victim’s compensation is totally dependent on the property of offenders. In China, the concrete practice is the traditional tort liability system can not assume the responsibility for the loss, many cases are forced to bear the heavy loss of the dispersion, resulting in tort liability was improper expansion.In modern society, spreading loss has become the way to internalization the damage, and the burden undertaken by enterprises, then spreading loss through the price mechanism, or insurance (in particular, the liability insurance). From borne by infringer to the internal loss, the protection of the interests of the victim is a major step forward. However, depand on tort law to protect victims, there are still some shortcomings. In view of this, modern societ had developed of a new decentralized mechanism, such as social security, relief funds, etc., to achieve the socialization of loss, in order to achieve timely and adequate compensation for the purpose of the victim.Socialization of loss is based on the theory of distributive justice. To treat tort liability by distributive justice, not only to consider the conduct of perpetrators of the damage, but also the position of the parties and which ona have the ability to spreading the loss. Simply transfer the loss to infringer have more harm than good to the society, but the extensive and regularly distributed to the social loss is favorable. In the first chapter of this paper, an analysis about the idea of traditional tort law is provided. All liabilities reflect the core idea - borne by infringer. But this model can’t insurer the victim obtain the final compensation.Chapter II, with China as an example, to explore the traditional compensation model assumed perpetrators crisis. From our road traffic accident compensation system, I scratchs compensation system of innovation in traffic problems, and demonstrates the expansion of the current tort liability through the loss.Based on the previous chapter, Chapter III explores the proposed road to solve the problem - the loss of a mechanism of social distribution. Losses arising from the socialization of industrial accidents, the distribution of justice is its theoretical basis.Despite the corrective justice theorists put forward for criticism, the loss of socialization has shaken the foundation of tort law, but to strengthen the socialization of credit infringement in respect of compensation.Chapter IV discusses the loss of the social structure of the system.Losses socialized into the specific system to perpetrators of liability insurance, the victim-oriented first-party insurance and community-led social insurance,but specific to each decentralized mechanism for the loss of position should be determined based on the specific social reality.Chapter V discusses the predicament of damage compensation system in our country, and assesses the draft of the tort law. Then the chapter analyzes the current situation and problems of liability insurance, social security and accident insurance,through which the loss is dispersed in the society. In the end,it gives accordingly suggestions to make improvement.In conclusion, the author suggests that loss of society through of risk management professionals to run the risk of institutions, in order to resolve the existence of the perpetrators - the victims of the bilateral structure of the risk of loss.In this process, the victim’s interest has been significant improved.更多还原