侵權行為損害賠償請求權消滅時效起算時點之研究中石化污染案與RCA污染案之評析

A Study on the Commencement of the Extinctive Prescription of a Claim for the Injury Arising from a Wrongful Act: Analysis of the China Petrochemical Development Corporation Pollution Case and the RCA Pollution Case

按依民法第197條第1項，侵權行為損害賠償請求權消滅時效之起算，係採雙重判斷基準。關於依第一重判斷基準而起算時效，本項前段規定，短期時效自請求權人知有損害及賠償義務人時起開始進行，查其規範目的係專為保護債權人之利益。至於請求權人是否知有損害，無論係一次或多次侵害行為致生損害，均應依可預見說為斷。惟除請求權人應知有損害及賠償義務人外，短期時效之開始進行，尚應目的性擴張民法第197條第1項前段，以請求權人知悉足使侵權責任之其他構成要件該當之事實為必要。關於依第二重判斷基準而起算時效，本項後段規定，長期時效自有侵權行為時起開始進行，查其規範目的係為維護法秩序之安定並保護債務人之利益。至於其所稱之侵權行為時應係指侵害行為時，而非指損害發生時或經環保署公告週知須避免為一定行為時。惟縱債權人之侵權行為損害賠償請求權已經罹於時效，倘債務人主張時效抗辯有違誠信原則，因債務人行使該項抗辯權係屬權利之不法行使，故得予以禁止，債權人即得於相當期限內行使其請求權，藉以中斷時效。

According to Paragraph 1, Article 197 of the Civil Code, the commencement of the extinctive prescription of a claim for the injury arising from a wrongful act adopts doubled judging standard. Sentence 1 of Paragraph 1, Article 197 of the Civil Code is the first standard, as starting the short extinctive prescription when the injury and the person bound to make compensation became known to the injured person. The purpose of this regulation is to protect the interests of the creditor. As for whether the claimant is aware of the injury, whether the injury caused by one or more infringements, the judgement should be based on the foreseeability theory. However, to start the short extinctive prescription, not only does the claimant have to know both the injury and the person bound to make compensation, but Paragraph 1, Article 197 of the Civil Code should also be applied by analogy. That is, the claimant needs to have actual knowledge to other constitutive elements of tort liability. Sentence 2 of Paragraph 1, Article 197 of the Civil Code is the second standard to decide the commencement of the long extinctive prescription. According to the objective standard, the starting of the long extinctive prescription is from the moment when the wrongful act was committed. The purpose of this regulation is to protect the principle of legal stability and interests of the debtor. As to the wrongful act committed, neither the moment when the damage happened nor the ban promulgated by the Environmental Protection Administration to prohibit from acting is the definition, to wit, starting of the long extinctive prescription is from the date when tort was committed. However, if the debtor’s defense of extinctive prescription is abuse of right, even though the creditor’s right to claim damages is extinguished by prescription, the court should reject the defense of the debtor, and the creditor can exercise claim in the reasonable period of time to interrupt the extinctive prescription.