論我國民事侵權行為法上他人行為責任之一般原則之建立：以控制機構之責任為中心

Study on Establishing a General Principle of Vicarious Liability within Tort Law in Taiwan's Civil Law

未來高齡化社會及雙薪家庭所導致大量幼兒托育之潮流下，機構式生活必然成為未來多數人之選擇，相較於「管領物責任」，我國民法由原本動物占有人責任及建築物或工作物所有人責任，擴大增加產品責任、動力車輛駕駛人責任及第191條之3危險製造人責任，已建立完備的物之管領責任，但他人行為責任，卻仍停留在民國18年債編公布時之條文，僅有法定代理人責任及僱用人責任，不足以承載日益多樣化的生活方式。本文由法國民事責任法之變遷，輔以我國學說及司法實務就法定代理人責任及僱用人責任要件之探討與發展，主張應從控制機構出發，通盤承認一般性他人行為責任之原理原則，並於現行法解釋論上，應放寬法定代理人責任及僱用人責任之適用要件，擴大其於民事侵權責任法之承載功能，分別承載「抽象型」與「具體型」之他人行為責任類型。立法論上，得參考法國模式以抽象論述為法條，再透過司法實務累積案例，適度鬆綁責任主體與行為主體間之連結羈絆；亦可參酌德國模式，分別將法定監督義務人與事實監督義務人，於我國民法第187條及第188條適當之處，以「準用」方式納為規範對象。 With the new life style predicted to happen in the future, new questions in tort law will arise. The vicarious liability in Taiwan's positive civil law may be confronted with many challenges. The purpose of this paper is to discuss certain of those challenges in non-traditional areas – namely educational, correctional and social care institutions. When some injuries are caused by their members, whether and how the institutions could be held responsible in order to meet the indemnification requirement would be a new and interesting subject in tort law. This paper focuses on scholarly comparative legal research, not only on the use of French law and jurisprudence, but also on analyzing Taiwan's law and jurisprudence. In this paper, an attempt is made to work out a methodology for describing the face of vicarious liability in Taiwan's future tort law. The paper suggests that we ought to establish a general principle of vicarious liability within tort law in Taiwan's civil law to deal with more and more complex questions in tort law. In Taiwan's positive civil law, only two vicarious liabilities are provided: parental and employer liabilities. There is no clear answer to the question whether employer liability is indeed vicarious liability. If we consider the employer as being held liable for its own negligent acts, parental liability would be the only one type of vicarious liability in Taiwan's positive civil law. Thus, we think that employer liability would not only be one type of the vicarious liability but also be supposed to enrich its function in tort law. Equally as important, we should enlarge the scope of application of parental and employer vicarious liability. Parental liability is to be in charge of that for who has abstract, longtime, continual control over another one's life style. Meanwhile, employer liability is to be in charge of that for who has concrete control over another one's specific act. Educational, correctional, social care institutions may be responsible for the injuries caused by their members, depending on their abstract or concrete control over their members. As a result, the concept of vicarious liability arises in ever - developing areas of the law, both in Taiwan and French law.