道路管理者侵权责任研究 - 以妨碍通行物致害为中心 -

Abstract

In the question of the Liability of road administrators in injuring responsibility of traffic obstructions, In determining the principle of the responsibility imputation of road administrators, there is a debate between monism and dualism in the theoretical circles. In this regard, the behavior of people and road administrators who produce traffic obstructions should stipulated separately. That is to say, the author adopts dualism. According to the provisions of Article 89 of the Tort Liability Law of the People’s Republic of China, the principle of the responsibility imputation of road administrators should be applied no fault liability while Article 10 of Interpretation of Several Issues Concerning the Application of Law in Road Traffic Accident Compensation Cases promulgated in 2012 holds that road administrators should be applied the principle of presumption of fault. In this regard, the author intends to obtain the rationality of the principle of the presumption of fault of road administrators from the perspective of the subjective imputation, the legal system, the difficulty of obtaining evidence, the balance of interests, the current judicial practice in China. In the case of the constituent elements of the responsibility of road administrators, they mainly include the fact that the road administrators don’t fulfill the management responsibility, the infringers are damaged, the causal relationship between the administrative responsibility of the road administrators and the infringers, there is subjective fault in road administrators. The author compares the cases where the infringers don’t prosecute the road administrators and the infringers can’t determine the situation. The analysis shows that the share of the road administrators’ responsibility in practice is different according to the subject that the infringers prosecute and whether there are infringers. The reasons for such a situation lie in that the basis of the responsibility of different courts is not unified. The author believes that in injuring responsibility of traffic obstructions, the behavior of road administrators and infringers should be a separate infringement, and both shall undertake liability on share. Determining the responsibility of road administrators should be based on their fault level, reasoning force of behavior and damage, and the relevant policy. Road administrators usually damage interests of others by nonfeasance, their subjective fault is small and they should bear small responsibility corresponding to the degree of fault. The fault of the road administrators is presumed, thus there is a great deal of uncertainty. And the subjective fault will be unconformable with role of the damage behavior when determining responsibility of road administrators only by the degree of the fault. It should be combined with the reasoning force to determine responsibility of road administrators. For the relationship between fault factors and reasoning force, the author believes that it should combine Fault Theory with Reasoning Force Theory. Besides, it mainly uses reasoning force supplemented by fault of road administrators, then determines the scope of responsibility through policy considerations and fair responsibility to better supervise the road administrators to fulfill their obligations.