【作者】 李玲娟；

【导师】 张文显； 郑成良；

【作者基本信息】 吉林大学 ， 法学理论， 2009， 博士

【摘要】 正义理念问题是关系侵权法能否走出理论困境、实现制度创新的关键。侵权法在发展的不同时期具有不同的正义理念。近代社会以来,侵权法的正义理念从维护个人自由权利走向维护社会一般安全,在风险社会侵权法的使命则是如何来公平的分配风险。侵权法又是一部有关责任的法律,其正义理念和相应的制度设计直接体现在责任的规定之上。就责任的承担而言,它决定现实社会生活层面上发生的损害,受害人是否及能否得到法律上的救济。近代侵权法的价值基础是自由主义,其追求个体正义,遵循矫正正义和抽象平等观念。在制度上设计上则是采用过错责任,以抑制对自由的侵害,激发社会每个成员的创造活力,从而促使社会财富的迅速增长。但是近代侵权法在应对大量的工业事故和人身损害问题上,出现了制度失灵。以社会一般安全为价值基础的严格责任适时而生。严格责任以社会安全为目标,体现的是一种社会正义。在制度设计上则是通过与保险制度相结合,将损失分散到社会,扩大了救济的力度。严格责任制度适应现代社会的要求,在促进人的发展、社会资源配置、受害人利益维护等层面上发挥积极作用。当人类社会全面进入风险社会后,基于“风险——分配”逻辑,在人类社会追求社会正义价值的指引下,侵权行为法正悄悄的迎来一场深层次的变革,如何公平的分配社会风险,促进个人自由价值与社会公共安全价值和谐是侵权法的新使命。更多还原

【Abstract】 The justice is always the human’s eternal pursuit for ideal value, while in different times has different justice pursuit. It’s a key issue about how to distribute the social value under the established social conditions, which relates to the stability of social order, harmony and humans happiness. As one of the oldest and the most important legal systems, the tort law has practiced to fulfill the requirements of justice from its birthday. This paper studying the justice of tort law is not to create a new value system but to conclude the justice theory in tort law through different times with different prevailing philosophy of law.In the first part the article is mainly to introduce the evolution of tort law and the development of justice concept. It’s manifested in the evolution of tort liability principle. Without a throughout moral value, there are various justice theory in different times. So this article is based on various time standards. The history of tort law can be seen as a history of the evolution of tort liability. The tort law liability has experienced injuring liability、fault liability and strict liability. Every kind of evolution contain in the change of justice concept. In the pre-modern society, especially before it become an independent legal department, the tort law worked as a part of criminal law playing a reconciling role of social contractions. Therefore, as "the black sheep out of the negative loss", the result liability become an most important feature of tort law which based on maintaining the stability of social order. In modern times, although the development of liberalism and liberal capitalism has a profound influence on tort law, the fault liability promote individual freedom and creativity and encourage the development of industrial capitalism in adverse, so it has been got a great publicity and taken a dominant status. However, with the coming of modern industrial society, it is not adapt to the growing industrial damage if take fault liability as a liability principle. And the victim’s loss relief can not be effective. As a result, the scholars and researchers all try to find a better reform according to fault liability system in and out, so the fault presumption theory and strict liability theory began to be developed. The justice of tort law begin to put importance on numerous risks about human safety in community life, admit the unequal status on preventing risks, and assess economic benefits and arrange safety priorities, to construct a reasonable and open tort liability system.In the second part the author analyze the justice of tort law which featured by fault liability in recent years. The fault liability is the product of modern liberalism, which stress that every free man should be responsible for his or her fault action, and only human free will ability can lead to legal consequence, and only when free will exists fault it can lead to a moral assessment of actors, then to make an judgment taking responsible for their acts. That is to say, no-fault liability is aim to protect the freedom which is born to be equal. Therefore, the fault liability is embodied in a concept of personal justice, which starts from individual rights protection and limit the processing of tort behavior to private scope, aiming to correct violation from emergence among individuals. Through the analysis of fault liability’s basic concept and the study of its philosophy of law, this chapter considers that fault liability is embodied in the individual rights justice concept. The individual rights essence is a negative freedom, which divides the government authority clearly with the individual rights protection as basic point. But this fault liability is a kind of form justice in fact, which no longer appears as an image of protector for right owners, but to become a tool of protection for individual rights. Therefore, in order to maintain and protect the victims’ rights, the modern tort law developed the objective fault theory on the basis of subjective fault theory, which uses reasonable attention duty to replace the fuzzy criteria in subjective fault theory, embodying the concept of justice.In the third part it analyzes the justice theory of industrial society of tort law. With the exposure of modern private system defects on liberalism, according to the change of social basis, the worldwide countries have made limitations and refinements on contractual freedom, the absolute ownership and fault liability principles under the private law authority. Sociology of law take society as an organism, and everyone is an integral part of the organism. Freedom under individualism is not hurt others’ rights, in fact that is to say, not do anything. But individual should complete one’s social responsibility, so he has a duty to do that. Affected by such ideas, the tort law began to pay attention to community security and individual justice, and "the general security" becomes as the highest standard in tort liability law. In accordance with it, tort law system is still in the continual revision and development, such as the tort behavior concept, responsibility standards, no longer having the time characteristics. From analysis of strict liability concept and scope, according to the sociology of law, this article believe in the industrial society strict liability is a "damage distribution rule", which is embodied in a concept of social justice by relieving the victims to maintain social order and public interest. However, although the tort law ruled strict liability to expand the relief for damages, in judicial practice, the strict liability still can not make certain compensation for victims. The reason is that tort behavior liability is a mechanism for individual accountability. The dual situation between victims and offenders make the victims claims for compensation subject to the capacity of offenders. And in addition, the process of determining responsibility leads to delay, high costs and uncertainty of the compensation. In order to solve this problem, the insurance system expand to the scope of infringement liability, but it also result in violations of anti-ethics. For this problem, it is necessary to introduce punishment system.In the fourth part it analyzes the construction of justice theory of tort law in risk society. Just as the modernization had digested the feudal society in the nineteenth century and lead into industrial society, the present modernization is also resolute industrial society and come to risk society. With the arrival of new century, human society has come into the risk society. As a part of social system, the law should be a control means for modern risk management to respond to the society positively. The dangerous industrial activity is a creative process by itself. It aims to hunt for interest, which process contains risk. So the accident interest has a correspondent relationship with the harm to others. The risk society tort law’s key problem is human’s freedom and safety. When the tort law permits to impose certain risks, it increases someone’s freedom but others are in danger. The people can pursue valuable purpose freely and conduct meaningful behavior, while their pursuits endanger others’ life and property rights. The risks make a conflict between the offender’s freedom and the victim’s safety. In the risk society, it is tort law’s new mission that how to distribute social risks fairly and how to promote individual liberal value and public safety. According to discuss the background and concept of risk liability, it’s believed that it adapts to special dangerous activities in this article. Through two types of risk analysis approach in the present theoretical community, the author talks about ideas on distribute risks fairly according to Rawls’s theory of justice.更多还原