論法國民法上他人行為責任一般條款之適用領域與要件

Study on the Application Domains and Conditions About the General Principle of Vicarious Liability Within French Tort Law

民事責任法以自己行為責任為原則，但現代社會生活型態日趨複雜，常須藉助他人以擴大自己行動領域之情形，從而，他人行為責任之發展，為當代民事責任法值得關心之議題。本文以法國法之發展為基礎，論述法國民法上他人行為責任一般條款之適用領域及要件。就適用領域而言，法國民法將他人行為責任，分成「抽象對他人生活方式之控制」與「具體對他人特定活動之控制」兩種領域，均以責任主體所擁有之「管領力」為核心，強調管領力之「來源」與「內容」均須該當。就適用要件而言，責任主體擁有之管領力「來源」，必須基於法律規定「或」司法裁判，而管領力之「內容」，分別為組織力、統馭力及控制力，且須三者兼具，缺一不可。行為主體所為，必須具有法律意義之行為，且與損害間具有責任原因事實之因果關係。至於行為主體之行為是否以過失為必要，目前呈現雙軌制，未來發展有待進一步觀察。

Economic and technological advances indicate the growing importance of gardien liability. In France, the gardien liability covers both liability for damage caused by things and the liability for persons under one’s garde, namely the vicarious liability. This paper aims to examine the scope of vicarious liability indeed imposed on one person for the act of another. When some injuries are caused by tortfeasors, the person could be adjudged civilly responsible for the actions and thereby required to compensate the person injured. However, in all legal systems, the defendant will not be held strictly liable for all torts committed by the person who harms the victim. Thus, how to meet the indemnification requirement would be a new and interesting subject in torts law. The purpose of this paper is to demonstrate how the doctrine and jurisprudence in France limited the scope of vicarious liability. In this paper, an attempt is made to work out a methodology for describing the face of vicarious liability in French tort law. This paper focuses on scholarly comparative legal research on the use of French law and jurisprudence. A general principle of vicarious liability within tort law in French civil law has been established to deal with more and more complex questions in tort law. Article 1242 of the French Civil Code contains a number of provisions imposing a form of vicarious liabilities: parental, employer liabilities and liability of craftsmen for their apprentices. Furthermore, a common framework has been identified for imposing vicarious liability in France. This paper describes two basic observation skills: application domains and conditions about the general principle of vicarious liability within French tort law. As for the application domains, it is necessary to distinguish the two different domains—the abstract control over one’s life style and the concrete control over one’s activity in French tort law. The former means the liability of those who impose abstract, long-turn, and continual control over others’ life style. Meanwhile, the latter means the liability of those who impose concrete control over others’ specific act. Both apply to the same principle but under different conditions. That is, a connection—namely, the authority—must exist between the tortious act and the parties’ relationship. The authority can be observed in two aspects. One is by the source while the other is by the content of the authority. The sources of the authority should be derived only from laws or judicial decisions. The contents of the authority consist of three simultaneous authorities—the organizational capacity, the power to give directions, and the supervision authority. As for the application conditions, vicarious liability in French tort law generally renders both the tortfeasor and the person held law responsible jointly liable to victim. As will be seen, the person deemed at law responsible should have the simultaneous authorities and can only be established by laws or judicial decisions. This is to exclude any transfer of factual authority just by consensus or agreement. The act of the tortfeasor should be identified as an act of legal meanings, which is to emphasize the liability for person under one’s garde rather than the liability for damage caused by things under one’s care. As a result, the concept of vicarious liability arises in everdeveloping areas of the law in French law.