法經濟學視野中的侵權法──風險預防的視角

Tort Law from the Perspective of Law and Economics: Position Based on Risk Prevention

事故風險預防責任規則不明是大量侵權糾紛的根源，風險預防應被確立為我國侵權法的基本原則之一。自卡拉佈雷西提出風險預防理念至今已逾大半個世紀，但法學仍未系統地接受它，部分原因在於對其邏輯完備性的質疑，另一方面源于對其原理缺乏系統簡明的闡釋。風險預防理論主要關注兩個問題：風險預防和實體行為激勵。關於風險預防不存在原理爭議，可將其原理概括如下：若一方未採取社會最優預防，責令該方承擔其提高預防水準至社會最優所能避免的社會損失，就可促使其採取社會最優預防水準。只要責任規則滿足這一條件，就總是有效率的，並且，當一方未採取社會最優預防水準而致事故發生時，法庭總可以滿足這一條件。在實體行為激勵問題上則存在諸多混亂和爭議，其根源在於追求一個邏輯上不合理的目標：構建責任規則激勵行為人同時採取社會最優預防水準和社會最優行為水準。

"The unclear liability rules of accident risk prevention are the root of a large number of tort disputes. Risk prevention should be established as one of the basic principles of tort law in China. It has been more than half a century since Calabresi put forward the concept of risk prevention, but it has not been systematically accepted by law, partly because of the doubt on its logical completeness, on the other hand, because of the lack of systematic and concise explanation of its principle. Risk prevention theory mainly focuses on two issues: optimal prevention of accident risk and entity behavior incentive. There is no dispute on the principle of risk prevention, which can be summarized as follows: if a party fails to take the social optimal prevention, it can be prompted to take the social optimal prevention level by ordering the party to bear the social losses that can be avoided by improving the prevention level to the social optimal. As long as the liability rule meets this condition, it is always efficient, and when one party fails to take the social optimal prevention level and causes an accident, the court can always meet this condition. There are many confusion and disputes on the incentive of entity behavior, which is rooted in the pursuit of a logically unreasonable goal: constructing responsibility rules to encourage actors to take the social optimal prevention level and social optimal behavior level at the same time. The traditional theoretical basis of tort law is the theory of moral responsibility. The theory of risk prevention does not replace it, but enriches the connotation of moral responsibility with risk prevention and supplements the moral debate with objective logic."