“合同—侵權”二元民事責任體系的發展、協調與整合——兼談《民法典》責任體系的安排

The Development, Coordination and Integration of the Dichotomous Liability System Between Contract and Torts: The Arrangement of the Liability System in Civil Code

法、德兩國民法均以“合同—侵權”二分法構建其民事責任體系，但隨著實踐的發展，傳統的民事責任體系受到衝擊。以誠實信用原則為依據，合同義務不斷拓展，合同責任呈現出擴張趨勢。侵權責任也逐漸將不作為責任納入其中。但各國法律構造的不同，使其民事責任體系的發展呈現出不同樣態。我國在民事立法上採取混合繼受、單行立法的方式，因此在體系上存在一些不協調之處。通過比較借鑒大陸法系國家的制度經驗，我國未來的《民法典》有必要在總則中對民事責任制度進行一般規定，以統領分則各章，同時堅持合同上義務群的規定，適當突破合同相對性，以更加周延地保護當事人權益，使侵權行為回歸債法，並借鑒德國模式對其精確限縮，以便於適用。通過請求權規範競合說解決責任的重合問題，妥善協調各種責任之間的關係，維護民法典內責任體系的統一與和諧。

France and Germany built up their civil liability system based on the dichotomy between Contract and Torts. But with the development of the practice, the traditional civil liability system are impacted and changed. In accordance with the bona fide doctrine, the contractual obligations are expanded, which manifests the expansion trend of the civil liability system. The Torts liability also gradually brings the omission liability into its content. However, owing to the different legal structure of each country, their civil liability system present different modes. Because our nation inherited and accepted law from both countries and enacted each special regulation respectively, the civil system presents a disordered state. Through comparing our country’s legislative tradition with the legal institution of common law system, it is necessary to stipulate general principle of civil liability system in the general provisions, in which way to dominate the specific provisions. Meanwhile, we ought to insist on the classification and diversification of contact liability, break the contractual relativity principle aptly, hereby to protect interests of relevant parties in a more thorough way. We must bring Torts back to the law of obligation and learn from the German modes to limit the tort liability, making it become conveniently applied. In order to maintain the uniformity and harmony of the liability system in civil code, we should also solve the problem of liability concurrence by the Theory of the Legal Norm Concurrence of Petition Right and appropriately coordinate the relationship between different liabilities.