論過失侵害利益之侵權責任：區別權利侵害與利益侵害的困境與突破

Tortious Liability on Negligent Infringement on Interests: Dilemma From and Breakthrough For the Distiguishment of Infrigement on Rights and Interests

我國侵權行為法之基本規範為民法第184條，在立法上採取德國模式，區分權利侵害與利益侵害，在學說上雖有爭議，但實務上近年來已予肯定。所生爭議者為，在權利侵害與利益侵害之要件區分下，對於過失侵害利益（即過失侵害純粹經濟上損失）之案例，在我國法上何時成立侵權責任。近年來，我國實務上陸續出現此等難題，如金錢損害案、蚵農受損案、自殺造成凶宅案及建築物瑕疵案等，在學界引起熱烈討論。本文參照德國法上的發展，探討權利擴大化及「附保護第三人作用之契約」理論等案例，重新檢討我國案例。基於民法第184條第1項後段規定的目的及功能，本文認為我國為解決過失侵害他人利益之案型，除採取擴大權利之概念外，應善用民法第184條第1項後段之規定，作為侵權行為法規範漏洞的填補方式。

Article 184 of Taiwan Civil Code follows the model of German Civil Code, establishing the tort liability through the distinction between the infringement on rights and the infringement on interests, which has been confirmed by recent Taiwan Supreme Court judgments although it is debatable on this issue from academics in the past. Following this distinction, it raises an important issue about the requirements to impose a tort liability on the tortfeasor when he negligently, rather than intentionally, infringes upon the interests of another. Recently, some controversial court cases have appeared as to the tort liability of negligent infringement on interests of another, such as the case of loss of money, the case of injury of oyster-farmers, the case of house in which someone committed suicide, and the case of sales of defective buildings. Such cases ignite fierce debates among law scholars. This paper explores the ways in which German law deals with such cases, including the broad interpretation of the ＂rights＂ elucidated under article 823 (1) of German Civil Code and the establishment of a theory of the protection for a third party to a contract. Since the Taiwan court is unwilling to receive the German doctrine of the theory of the protection for a third party to a contract, this paper suggests that, in addition to expand the scope of the concept of 'right' protected by the tort law in appropriate cases, it is desirable to utilize the second sentence of article 184 (1) of Taiwan Civil Code to deal with those controversial cases of negligent infringement on the interests of another.