对侵权过错概念的再认识

过错是过错责任最为核心的要件。然而,对于过错的认识,侵权法上有着主观过错与客观过错的纷争。现代社会经济生活环境发生巨大的变化,过错责任及主观过错理论面临着许多新的问题和挑战,许多学者提出主观过错理论已经不能适应现代社会生活的实际情况,应当以客观过错理论取而代之。本文通过对两种理论在现代社会中遇到的主要问题的分析,认为主观过错理论的缺陷完全可以通过一些方法予以弥补,如果舍弃主观过错理论,采用客观过错理论,将遇到不可克服的问题。因此,主观过错理论依然值得我们固守。

Rethinking about Fault on Torts

During the development from the 19th century to the 20th century, the principle of fault liability and the theory of fault were severely tried by the great change of our society. To deal with these challenges, there were some newly noticeable advancement of principle of fault liability and the theory of fault in modern tort law as the objectification of negligence and presumption of negligence. Some argues that the theory of presumption of negligence cannot meet the great change of our society. It has to be abandoned, and we must adopt the theory of objectification of negligence. But, from my perspective, the theory of objectification of negligence has fatal defects when it faces the modern society, and the deficiency of the theory of presumption of negligence can be made up. Therefore we must continue to uphold the theory of presumption of negligence just as in the past.