安全保障义务与不作为侵权.doc

安全保障义务与不作为侵权 冯珏 　　【内容提要】最高人民法院人身损害赔偿司法解释第6条引入了源自德国判例的交往安全义务。但法院在审判实践中遇到的真正困难在于不作为或间接侵权的结构性特征所带来的因果关系难题。引入安全保障义务对解决这一难题的意义在于，如果安全保障义务的内容正是防止处于其保护范围内的人遭受第三人的侵害，或者防止处于其控制范围内的第三人侵害他人，那么认定义务人违反了此义务就可化解因果关系难题，但其意义也仅限于此。侵权责任法草案（二次审议稿）第14条对于第三人行为介入的各种情况欠缺考虑与准备，存在过度抽象之嫌，且一般性地否定了间接致害侵权存在的空间，将会带来严重的负面影响。 　　【关键词】安全保障义务 不作为侵权 间接侵害 作为义务 因果关系 　　[Abstract]§6 of the judicial interpretation of supreme people’s court on compensation for personal injury has brought the theory of duty of care derived from German cases into Chinese Law. Such importation is of some significance for our judicial practice to resolve the difficulty it faces concerning liability for omissions and indirect infringement. 　　Although this theory can crystallize§106（2）of General Principles of the Civil Law on the problem of duty of act，such problem is not the urgent difficulty faced by our judicial practice. Firstly，§106（2）of General Principles of the Civil Law has not excluded the liability for omissions or indirect infringement. Secondly，the origins of duties of act are not limited to the special provisions of legislation according to our theory. Thirdly，in the typical cases as the background of such importation，courts have not ruled such cases on the absence of duty. 　　In fact，it is the structural feature of omission and indirect infringement that troubles our courts. That is to say，there are often intervening acts of third parties or victims before the occurrence of the damage，and such intervening acts are the direct causes of the damage. This feature has produced the difficulty on the problem of causation. 　　The duty of care can in some extent resolve the hard problem of causation. If the duty is to protect the person within its protective scope from infringed by a third party，or to prevent a third party within its controlling scope from infringing others，then once such duty is breached，the requisite of causation is also satisfied. On the other hand，if the duty has nothing to do with the act of a third