大规模侵权法律责任制度体系建设研究

现代社会是一个市场经济社会,也是一个风险高发的社会,风险多发和侵权范围广泛之特征要求侵权责任法立法必须对此作出应对。大规模侵权法律责任制度的构建即是因应这一特征的重要制度设计。大规模侵权责任制度的构建要考量公共政策的因素,考虑受害人的不确定性,以及在侵权责任构成要件方面判断的特殊性。同时,我们必须考虑大规模侵权行为多发生在商业领域,作为商业侵权行为的重要表征形态,要将此制度设计与商业侵权责任制度体系有机统合,形成内在和谐、统一的制度架构;必须考虑现代社会大规模侵权责任制度的构建与保险法律制度、社会保障法律制度的整合;必须考虑大规模侵权责任制度的实现与程序法规则的完善的内在一致性。     

Least-Cost Avoidance: The Tragedy of Common Safety

This article shows that the least-cost avoider approach in tortis not necessarily the optimal way to attain least-cost avoidancewhen accidents can be avoided by either of two parties. Whenparties do not observe each other's costs of care at the timeof the accident and are unable to determine which party is theleast-cost avoider, they fail to anticipate the outcome of theadjudication. Under these circumstances, accident avoidancebecomes a commons problem because care by each individual partyreduces the prospect of liability for both parties. As a result,parties suboptimally invest in care. We show that regulationremoves this problem and is superior to tort liability bothwhen parties act simultaneously and when they act sequentially.We further examine how different liability rules perform inthis respect. (JEL K13, K32)     

EFFICIENCY OF LIABILITY RULES WITH INTERDEPENDENT COSTS OF CARE

Abstract.  Most of the results of the law and economics literature relating to the question of efficiency of liability rules have been obtained in the context of two-party interactions in which the cost of care of each party is independent of the care level of the other. In this paper we analyse the question of efficiency of liability rules in the context of interactions in which the cost of care of at least one of the parties is not independent of the care level of the other and characterize efficient liability rules whenever possible and in all other instances we obtain impossibility results.     

Environmental Liability Law and Induced Technical Change – The Role of Discounting

We analyse the incentives of environmental liability law for inducing progress to emission abatement technology. We consider three liability rules: strict liability, a negligence rule with an emission norm as the due care standard, and a double negligence rule which combines the emission standard with an abatement technology norm. In the case of distortive discounting, i.e. where the private discount rate deviates from the social one, we show, how the level of distortion influences the ranking of liability rules, according to the criterion of generated social cost.     

环境污染侵权责任的认定及损害赔偿

环境污染侵权案件伴随着当代经济高速大规模发展日益增多,我国环境污染侵权责任制度已经建立了较好的基础,但在环境权确立、侵权责任认定以及责任方式与救济途径等方面仍然存在不少问题与缺陷。文章通过对上述问题进行阐述分析,借鉴国外先进理论与制度,提出了相应的对策。     

证券争议:两种法律解决途径的比较分析

新兴加转轨的中国证券市场中,披露虚假信息、内幕交易、非法关联交易、操纵市场等欺诈行为猖獗,由此产生了大量的证券争议.证券争议法律解决途径主要有证券侵权民事赔偿诉讼以及证券纠纷仲裁制度.笔者认为,中国目前有关证券侵权赔偿的司法救济途径存在较多问题,应当在司法解决途径之外,考虑借鉴美国的证券仲裁制度,在中国大力推广非诉的争议解决方式--仲裁.     

A Complete Characterization of Efficient Liability Rules: Comment

In a recent article, Jain and Singh (2002) prove that a condition they call negligence liability is necessary and sufficient for any liability rule to be efficient. In this note I criticize their result on two accounts: First, their result crucially depends on implicit restrictions they impose on the liability assignment function. If we drop the assumption that the liability apportionment between two non-negligent parties is constant for all combinations of non-negligent care levels, the equivalence between the condition of negligence liability and the efficiency of liability rules breaks down. Second, their attempt to drop the assumption of uniqueness for the social optimum improves the generality of the model at a substantial cost, since it must be accompanied by a new assumption that is possibly even more unrealistic. The importance of the uniqueness assumption is shown in a simple discrete care model, in which comparative negligence may lead to an inefficient outcome when the existence of two social optima leads us to interpret due care as a varying standard based on the other partys actual choice.     

民事责任竞合刍议

民事责任竞合来源于法律规范竞合理论。现代法律都作抽象规定,并且从各种不同角度对社会生活加以规范,所以,经常发生同一个事实符合几个法律规范的要件,致使这几个法律规范竞合。同一民事违法行为同时符合数种民事权利保护的规定,就构成民事责任竞合。民法上的民事责任竞合,就是民事请求权竞合。民事责任的竞合包括多种情况,主要讨论侵权责任与违约责任的竞合。     

责任保险在大规模侵权中的运用

随着大规模侵权事件的不断出现,传统侵权法仅由"加害人承担损失"的观念正逐渐改变,责任保险成为侵权领域中一种新的救济方式.本文在对大规模侵权的可保性进行深入分析的基础上,提出责任保险与其他救济方式相比存在独特的优势,并从法律和保险实务两个角度明确了其保障范围、保障程度及发生责任竞合时的处理方式.     

ORIGINS OF THE TORT REFORM MOVEMENT

The tort reform movement in the United States reached its peak during 1986, when 39 states passed legislation to limit court awards. The explosion of litigation and jury awards in the US. frequently was stated as the cause for the liability insurance crisis. This paper explores the origins of the tort reform crisis. It concludes that the crisis was produced by the natural instability of the liability insurance industry and by the impact of technology on specific coverage lines.     

EFFICIENCY OF LIABILITY RULES WITH MULTIPLE VICTIMS

Abstract. This paper investigates the structure of liability rules from the efficiency perspective when there are multiple victims. It is shown that, when there is one injurer and multiple victims, there is no liability rule with the property of invariably yielding efficient outcomes. The fact that there is no rule which is efficient for all applications of course does not in any way preclude the possibility of a rule being efficient with respect to some subclass of applications which may be of interest. We consider in this paper the important subclass of applications (     ') which are such that the expected loss of a victim depends only on the care level taken by that victim and the care level taken by the injurer. It is shown that a sufficient condition for a one-injurer multiple-victim liability rule to be efficient with respect to the above subclass of applications      ' is that its structure be such that: (i) whenever the injurer is negligent and a particular victim is non-negligent, the entire loss incurred by that victim must be borne by the injurer; and (ii) whenever a particular victim is negligent and the injurer is non-negligent, the entire loss incurred by that victim must be borne by the victim himself. In fact, for an important subclass of one-injurer multiple-victim liability rules, characterized by the condition that the proportions in which the loss incurred by a particular victim is to be borne by the injurer and that victim must depend only on the non-negligence proportions of the injurer and that victim, the above condition is both necessary and sufficient for efficiency with respect to the restricted subclass of applications      '.     

Accident Law: Efficiency May Require an Inefficient Standard

In a world with risk-neutral agents in which accidents occur with a positive probability, liability rules will only induce efficient behaviour if these rules impose the full (marginal) costs of an action on the parties. However, institutional restrictions or bilateral activity choices can prevent the full internalization of costs. A mechanism is proposed which guarantees an efficient outcome: monetary fines which are not related to the occurrence of an accident. Such a mechanism requires individuals to violate the standard of care in order to trigger the fine payments. Hence, efficiency requires an excessive standard.     

RISK, INFORMATIONAL ASYMMETRY AND PRODUCT LIABILITY: An Enquiry Into Conflicting Objectives

Abstract.  Risky products inflict two costs on society; the accident and the insurance costs. The expansion in the scope of product liability since the late 1970s has increased the cost of third-party liability insurance. However, the economic analysis has, traditionally, focused on only the accident costs. Some recent works suggests a strict trade-off between minimization of the accident costs and the insurance costs. In this paper, we extend the analysis by considering both types of costs. An efficiency characterization of product liability rules is provided by assuming informational asymmetry about the risk. We show that it is possible to achieve efficiency with respect to the insurance costs as well as the care levels.     

OPTIONS IN THE DESIGN OF COMPETITIVE-BIDDING PROCESSES FOR INDIGENT MEDICAL CARE

This paper discusses competitive-bidding systems for indigent medical care. Theoretical and empirical research which applies to the specific characteristics of these systems is limited. In particular, it is not clear which set of bidding rules would result in the lowest program costs for the state. Effectively implementing competitive bidding is difficult, given the ambiguity of available research results, since such bidding creates the appearance that policymakers have relinquished budgetary control.     

完善流域生态补偿机制与推进汾河流域绿色转型

完善生态补偿机制是推进汾河流域绿色转型的重要途径,当前流域生态补偿机制存在的主要问题是:补偿责任不明确,补偿标准不合理,融资渠道单一,补偿管理缺乏整体性.完善流域生态补偿机制的关键是:明确流域生态补偿的主体和对象,确定科学合理的补偿标准,开拓多渠道的补偿途径,制定生态补偿组织管理机制.     

法律经济分析在侵权法中的意义

法律经济学是20世纪后半叶法学界对传统法学最重要的发展之一。相对于传统法学定性的研究,法经济分析把定性、定量相结合,极大地促进了法学研究。由于经济学交易成本、外部性和潜在利润的存在,侵权责任法为侵权立法指明取舍标准,平衡个人理性、集体理性,并且促成个人福利的最大化,以达到社会效用最大化的目的。     

论侵权诉讼时效

基于人格权、物权、知识产权等绝对权被侵害产生的停止侵害请求权、排除妨碍请求权、消除危险请求权,不应当适用诉讼时效。为填补受害人的损失而产生的请求权,原则上财产性的请求权应当有诉讼时效的限制,而非财产性质的请求权不适宜有诉讼时效的限制。实务中要注意把握单行法规定的侵权责任特殊诉讼时效期间。刑事附带民事诉讼提起的侵权之诉的诉讼时效可以直接适用刑法有关追诉时效的规定。     

Ambiguity,data and preferences for information – A case-based approach

We model decision making under ambiguity based on available data. Decision makers express preferences over actions and data sets. We derive an α-max–min representation of preferences, in which beliefs combine objective characteristics of the data (number and frequency of observations) with subjective features of the decision maker (similarity of observations and perceived ambiguity). We identify the subjectively perceived ambiguity and separate it into ambiguity due to a limited number of observations and ambiguity due to data heterogeneity. The special case of no ambiguity provides a behavioral foundation for beliefs as similarity-weighted frequencies as in Billot et al. (2005) [3].     

The Endowment Effect and the Role of Uncertainty

This paper explains the endowment effect, whereby sellers generally demand considerably more for a good than buyers are prepared to pay, and related anomalies. Many decisions, including nominating buying or selling prices, involve uncertainty, and we assert that people experience negative psychological reactions to uncertainty. These reactions can affect a person's valuation of the various options, biasing the person's actions towards the status quo, thus producing the endowment effect. Our model also proposes positive or negative reactions to unlikely prospects, which are able to explain commonly observed behaviour in the presence of ambiguity.     

Environmental Regulations Under Simple Negligence or Strict Liability

We use negligence and strict liability as the basis for environmentalregulations and show that, when jurisdictions compete for firms that engagein environmentally risky behaviour, strict liability implements the sociallyoptimal outcome while simple negligence does not, even if the jurisdictionsfully cooperate in setting standards of care. Consequently, we argue that,even if jurisdictions delegate standard setting to a central authority, likein the European Union, this would not implement the socially optimaloutcome. We also demonstrate that harmonization of environmental regulationsmakes more sense if strict liability is used rather than simple negligence.