“行人非法進入高速公路”視域下經營者民事責任研究

Study on the Civil Liability of Operators Under the Vision of 'Pedestrian Illegally Entering the Expressway'

司法實踐中就行人非法進入高速公路受到傷害的案件在法律適用上存在較大分歧，高速公路經營者是否承擔責任、承擔責任的依據、歸責原則和具體計算均不一致。通過實證研究和理論分析可知，高速公路交通運輸屬於高度危險活動，但高速公路並非絕對就是高度危險活動區域；高度危險活動區域的認定應具有相對性，行人非法進入高速公路時高速公路才可被認定為高度危險活動區域，高速公路經營者才承擔高度危險責任，此時，高速公路經營者應承擔的是一種加重型過錯推定責任。此類事故中，高速公路經營者和肇事第三方應根據各自有無過錯、第三方客觀上能否給予賠償之不同，承擔按份責任或無追償權的不完全補充責任。

The empirical research done by this paper shows that there is a big confusion in the application of law when adjudicating the highway trespass of pedestrians who have suffered damages by vehicles of third-party. Some decisions were based on Article 123 of the Civil Law; some were based on Article 37 or Article 76 of the Tort Liability Act; while other were based on Article 9 of Judicial Interpretation of Traffic Accident Damages. There is a lack of unified practice. Highways will be considered as highly hazardous areas only when there is a highway trespass of pedestrians. Highway operators will bear liability based on an aggravated presumption of fault. This paper holds a view that, in such accidents, the highway operators and the third party perpetrators should bear proportionate responsibility, non-true joint and several liability or supplementary liability according to their respective fault or by taking into account the ability of the third party perpetrators to compensate.