矯枉過正：美國侵權連帶責任的制度變遷及其啟示

Hypercorrection: Institutional Change of Joint and Several Liability in U. S. Tort Law and its Implications

美國侵權連帶責任經歷了適用範圍從“極窄”到“擴張”再到“嚴格限縮乃至廢止”，利益平衡模式從“單向保護”到“具體權衡”的制度變遷。因果關係、比較過失、免責和解協議的效力等內部因素推動了內生性制度變遷，其基本任務是如何構建起合理的規範體系。憲法考量、公共政策、法律功能、訴訟程序等外部因素推動了外生性制度變遷，其基本任務是如何妥善發揮制度功能、避免濫用連帶責任。矯枉過正的深層原因是要素和驅動機制的複雜性。我國法上的侵權連帶責任未出現大幅度限縮乃至廢止，是因為體系化抑制了激烈的內生性制度變遷，轉型時期的政策要求趨向於完善連帶責任規範體系。

The joint and several liability in American law has experienced an overcorrect process in which the unusual narrow scope of application obtained an expansion but was under close restraint finally, and the balancing of interest which was a model of one-way angle developed into an individual model. The causation, comparative negligence and effectiveness of exonerative settlement constituted the internal elements which gave impetus to the institutional change based on endogenous, and its principal mission was to construct a rational system of rules. The considerations of constitution, public policies, legal functions, legal proceedings and legal culture constituted the external elements which promoted the institutional change based on exogenousness, and its chief aim was to exert the institutional function and to prevent the abuse of joint and several liability. The complicacy of elements and driving mechanism are the main cause of hypercorrection. There are two reasons for Chinese laws not to experience overcorrect institutional change. Firstly, requirement of systematism prevents the drastic institutional change based on endogenous ness. Secondly, requirement of policy in transition period trends to require constructing or completing system of rules for joint and several liability.