《中华人民共和国侵权责任法》第八十七条评析
发布时间：2018-11-16 20:54
【摘要】：经济、技术发展进程日益加快的同时,建筑水平也在不断提高,与之相对应,人口无限的扩张与空间相对的有限之间的矛盾使得人们将视野投向高空开发,高空开发与利用不仅可以有效的利用空间和缓解人口增长与土地稀缺的矛盾,也是必能的。高效利用空间的同时另一种情形同时出现,那就是“高空抛物”致人伤害及财产损失越来越频繁出现,与其同时但相关法律明显滞后。生活在城市狭小空间使得这种危险非常之大,伤害后果将极其严重。《侵权责任法》第87条不但没有对受害人有力的救济保障,更可能殃及无辜。在侵权人不明时,有关单位在处理时的结果也是不尽相同,同样的案件得不到同样的判决,不仅使当事人难信服,还影响司法的权威及公正,甚至浪费司法成本。在法律层面上《侵权责任法》第87条颁布与实施,这涉及面甚广的争议也未戛然而止,不同利益集团有不同诉求,人们对该法律条款是否废除及本身之合理性加以论证和质疑同时也对于该行为法理的依据发表了不同见解。司法部门处理这类案件时,让“可能”的加害人承担民事责任,更是引起了社会各界的广泛争议。本文主要以侵权人不明的“高空抛物”法律责任为研究主题,不仅限定在建筑的“抛坠”物。其中关于“高空抛物”致人伤害条款规定的相关连带民事责任使得真正的行为者没有得到应得到的惩罚,同时还助长了行为实施人的侥幸心理,种种弊端导致此类现象得不到有效的遏制。“高空抛物”伤人及损伤财产事件已经成为当今社会不可忽视的一种恶劣现象,舆论谴责行为人时,责任人除了承担经济赔偿外就没有较强约束力及制裁力。是现有法律惩罚力度不够?还是法律不够完善?还是社会环境给大家养成这种不良的恶习机会?笔者在试图通过《侵权责任法》第87条的法律条款和理论学说及系统分析、澄清问题同时,提出相关立法建议及对受害者的救济途径。
[Abstract]:While the development of economy and technology is speeding up day by day, the level of construction is also improving constantly. Correspondingly, the contradiction between the infinite expansion of population and the relative limited space causes people to turn their vision to high-altitude development. High-altitude development and utilization can not only effectively use space and alleviate the contradiction between population growth and land scarcity, but also be able to. The efficient use of space at the same time another situation, that is, "parabolic high-altitude" caused by injury and property losses more and more frequently, but at the same time, but the relevant laws lag behind. Living in a small space in a city makes the danger so great that the consequences of injury will be extremely serious. Section 87 of the Tort liability Law not only does not provide sufficient relief to the victim, but may also affect the innocent. When the infringer is unknown, the result of the unit concerned is different when dealing with the same case. The same case can not only make the parties difficult to convince, but also affect the authority and justice of the judicature, and even waste the judicial cost. At the legal level, Article 87 of the Tort liability Law was promulgated and put into effect, and the controversy involving a wide range of issues has not been brought to an abrupt end, and different interest groups have different demands. People argue and question whether the legal provisions of the law should be repealed and their own reasonableness, and also express different opinions on the basis of the legal theory of the act. When the judicial department deals with such cases, the civil liability of the "possible" perpetrators is even more controversial. This paper focuses on the legal liability of "parabolic at high altitude", which is not only confined to the "falling object" of architecture. Among them, the related joint and several civil liability under the "parabolic" injury clause makes the real actors not get the punishment they deserve, and at the same time contributes to the fluke mentality of the perpetrators. A variety of malpractices lead to such phenomena can not be effectively contained. The event of "parabolic injury" and damage to property has become a bad phenomenon which can not be ignored in the society today. When public opinion condemns the perpetrator, the responsible person has no strong binding force and sanction power except to bear economic compensation. Is the existing law punishment not strong enough? Or is the law not perfect? Or does the social environment give you the opportunity to develop this bad habit? In this paper, the author tries to clarify the problems through the legal provisions and theoretical theories and systematic analysis of Article 87 of the Tort liability Law, and at the same time, puts forward relevant legislative suggestions and remedies for the victims.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2336623
[Abstract]:While the development of economy and technology is speeding up day by day, the level of construction is also improving constantly. Correspondingly, the contradiction between the infinite expansion of population and the relative limited space causes people to turn their vision to high-altitude development. High-altitude development and utilization can not only effectively use space and alleviate the contradiction between population growth and land scarcity, but also be able to. The efficient use of space at the same time another situation, that is, "parabolic high-altitude" caused by injury and property losses more and more frequently, but at the same time, but the relevant laws lag behind. Living in a small space in a city makes the danger so great that the consequences of injury will be extremely serious. Section 87 of the Tort liability Law not only does not provide sufficient relief to the victim, but may also affect the innocent. When the infringer is unknown, the result of the unit concerned is different when dealing with the same case. The same case can not only make the parties difficult to convince, but also affect the authority and justice of the judicature, and even waste the judicial cost. At the legal level, Article 87 of the Tort liability Law was promulgated and put into effect, and the controversy involving a wide range of issues has not been brought to an abrupt end, and different interest groups have different demands. People argue and question whether the legal provisions of the law should be repealed and their own reasonableness, and also express different opinions on the basis of the legal theory of the act. When the judicial department deals with such cases, the civil liability of the "possible" perpetrators is even more controversial. This paper focuses on the legal liability of "parabolic at high altitude", which is not only confined to the "falling object" of architecture. Among them, the related joint and several civil liability under the "parabolic" injury clause makes the real actors not get the punishment they deserve, and at the same time contributes to the fluke mentality of the perpetrators. A variety of malpractices lead to such phenomena can not be effectively contained. The event of "parabolic injury" and damage to property has become a bad phenomenon which can not be ignored in the society today. When public opinion condemns the perpetrator, the responsible person has no strong binding force and sanction power except to bear economic compensation. Is the existing law punishment not strong enough? Or is the law not perfect? Or does the social environment give you the opportunity to develop this bad habit? In this paper, the author tries to clarify the problems through the legal provisions and theoretical theories and systematic analysis of Article 87 of the Tort liability Law, and at the same time, puts forward relevant legislative suggestions and remedies for the victims.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前1条
1 王利明;;抛掷物致人损害的责任[J];政法论坛;2006年06期
，本文编号：2336623
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