單位違反性騷擾防治義務侵權責任的解釋論展開——以《民法典》第1010條第2款為中心

An Interpretive Analysis on Entity's Tort Liability for Violation of the Anti-Sexual Harassment Duty—Centred on Article 1010, Paragraph 2 of the Civil Code

《民法典》第1010條第2款對單位違反性騷擾防治義務法律責任的沉默引發了理論分歧並增加了法律適用的不確定性。釐清該款的規範屬性、功能定位以及單位不作為行為與性騷擾行為的關係是解決問題的關鍵。第1010條第2款屬於以保護性自主權為目的的私法規範，單位違反該款規定導致性騷擾的構成不作為侵權，應依法承擔侵權責任。單位侵權責任在性質上屬於自己責任而非替代責任，適用過錯歸責。鑒於雙方舉證能力的懸殊，法院應借助表面證據、證明責任轉移和妨害證明主張推定規則來減輕受害人的證明責任。此類侵權在類型上屬於單位間接不作為侵權與行為人直接作為侵權結合的競合侵權，但存在轉化為幫助型共同侵權的可能。單位不作為侵權對行為人作為侵權的依附性決定了單位原則上僅承擔相應的補充責任，但單位知道或應當知道行為人利用職權、從屬關係實施性騷擾而未採取相應措施將構成幫助侵權，應承擔連帶責任。

Article 1010, paragraph 2 of the Civil Code establishes the entity's anti-sexual harassment duty for the first time in the form of a basic civil law, which is of great significance in promoting the change of the entity's role from passive bystander to active actor in the prevention of sexual harassment. However, the silence of this paragraph on the legal liability has triggered theoretical debates in academia on the nature, attribution principle and forms of liability in cases where an entity's violation of the anti-sextual harassment duty results in sexual harassment. Legislative silence and theoretical debates will inevitably lead to increased uncertainty in the application of the law. Clarifying the normative attributes and functional position of article 1010, paragraph 2, as well as the relationship between the entity's violation of the anti-sexual harassment duty and the perpetrator's sexual harassment are keys to solving the problem. In terms of the normative attributes, article 1010, paragraph 2 is a private law norm aimed at protecting sexual autonomy, rather than a labour law norm aimed at protecting labour rights and interests. The characterization of this paragraph as a labour law norm in the Civil Code and the negation of the entity's tort liability fall into the misconception of interpreting civil law norms with labour law mindset. The violation of the anti-sexual harassment duty by an entity resulting in sexual harassment constitutes a tort of omission and should be subject to tort liability. The nature of the entity's tort liability should be positioned as its own liability rather than vicarious liability, and the attribution of liability should be fault -based rather than no-fault based. In terms of proof of fault, the adoption. of the presumption of fault is not only in line with the nature of the entity's anti-sextual harassment duty as a duty of action, but also helps to balance the disparity in the ability to prove between the entity and the victim, forcing the entity to actively fulfil its duty, properly preserve and provide evidence on its own initiative, thus easing the evidentiary difficulties in the determination of sexual harassment. Due to the limitation that presumption of fault in the Civil Code must be established by law, there is no room for the application of presumption of fault within the current legal framework. However, the court could utilize prima facie evidence, shift of burden of proof and assertion of presumption as a result of nuisance to reduce the victim's burden of proof. The entity's tort liability for the violation of the anti- sexual harassment duty is the result of the combination of the tort of omission of the entity and the act of sexual harassment. The entity's tort of omission cannot result in damages separately and directly. The dependence of the entity's tort of omission on the perpetrator's tort of action determines that the entity, in principle, bears only the corresponding supplementary liability. However, if the entity knew or should have known that the perpetrator was using his or her authority or subordination to commit sexual harassment, but failed to take preventive measures, an aiding and abetting joint tort should be established and the entity should be jointly and severally liable with the perpetrator. In addition, a separate tort by the entity may be established due to the entity s inappropriate action in the course of fulfilling the anti-sexual harassment duty. This type of tort is significantly different from the entity's tort for the violation of the anti-sexual harassment duty in terms of the type of the tort, the object of the tort, the scope of the victim, and the relationship with sexual harassment, and a strict distinction should be made in judicial practice.