嚴格責任與無過錯責任之源流初探－－用比較的視角看兩大法系侵權法的發展

The Exploration to the Origin and Development of Strict Liability and No-fault Liability

嚴格責任與無過錯責任分別系英美法系與大陸法系侵權法上至為重要的歸責原則。二者得以確立均經歷了從結果責任到過錯責任／過失責任再到嚴格責任和無過錯責任的過程。由於兩大法系業已存在的固有差異及當下相互吸收、借鑒的趨向，嚴格責任和無過錯責任在發展、確立的過程中，既存在內涵外延、適用範圍、抗辯事由上的區別，又在哲學基礎、配套機制等方面趨同。對嚴格責任和無過錯責任的源流及發展加以探索，為中國侵權法的立法發展走向提供了參考和啟示，即：第一，在大膽引入「嚴格責任」概念的同時，須對簡單將其與「無過錯責任」加以等同的做法予以防範；其二，把侵權法的功能立足於填補損害、救濟弱者，弱化其懲罰、制裁的色彩；其三，與侵權法配套的社會保險、安全制度應加以建立健全，使之與侵權法形成良性互動。

Strict liability and no-fault liability are the significant criterions of liability in the tort law of Anglo-American legal family and Continent legal family respectively. The two criterions are established through the process from consequential liability to fault liability/ liability with negligence, and then, strict liability as well as no-fault liability. Because of the inherent difference between the two legal families and the current tendency of soak and borrowing from each other, there are not only differences in the comprehension and connotation, the range of application, the reason of application, the reason of defense, but also similarity in the philosophical basis, the systemic function, the matched systems during the developing process of the two kinds of criterion. It could provide some reference and inspiration for the legislation of the tort law in China through the exploration to the origin and development of strict liability and no-fault liability when the conception 'strict liability' was introduced to China confidently; secondly, to confirm the function of tort law in filling the loss and relieving the weak as well as to weaken the function of tort law as a tool of punishment and sanction, finally, to establish and improve the co-operative systems of the tort law, such as insurance, social security system, to make them reciprocate with each other benignantly.