公平责任原则刍议

公平责任原则指,"当事人对造成损害都无过错的,可以根据实际情况,由当事人分担民事责任"。它不同于民法中的公平原则,也不同于衡平。公平责任原则不应作为一项独立的归责原则:它不宜作为原则;它有悖于过错原则和无过错原则;定义中分担的应是损失,而不是责任;它威胁法律安全。建议:在保留类似特别条款规定的同时,以司法解释的形式对分担损失加以规定,以保证民法典的公平原则。

On the principle of fair liability

The principle of fair liability refers to that "parties have no faults for the losses they cause,and they should share civil liabilities according to actual conditions." It is different from the principle of fair liability in the civil law,and it is also different from equity.The principle of fair liability should not be taken as an independent imputation principle or a kind of principles.The principle of fair liability is contrary to the fault principle and the no-fault principle.In the definition of the principle of fair liability,what should be shared is loss instead of liability.The principle of fair liability is harmful to safety of laws.Therefore,it is suggested that while the similar special clauses should be maintained,the loss to be shared should be regulated in form of judicial explanation so as to guarantee the fair principle of the civil law.