论单独侵权致同一损害适用按份责任的例外

单独侵权不足以致全部损害时,应适用连带责任还是按份责任并无定论。连带责任将部分侵权人不能清偿的风险转嫁给其他侵权人,有利于保护受害人,却让过错比例较小的侵权人承担过重的责任;按份责任可避免过错程度与责任不相称,却将部分侵权人不能清偿的风险转移给原告。这使连带责任或按份责任作为一般规则设置例外显得必要,由此形成两种模式:连带责任为一般规则、按份责任为例外与按份责任为一般规则、连带责任为例外。多数国家采纳前者,我国采纳后者。排除政策性连带责任,网络服务提供者承担连带责任属于我国"按份责任"一般规则的例外,但其适当性欠妥,司法实践将环境侵权、医疗侵权作为例外情形有其合理性。

On Exceptions of Application of Proportional Liability in Indivisible Injury Caused by Independent Torts

Whether the joint liability or several liability should be applied where the indivisible injury is caused by independent torts is still controversial. Joint liability will transfer the risk of some tortfeasors’ bankruptcy to other tortfeasors, which is beneficial to the victim, but the tortfeasor whose negligence is smaller will assume too much liability. The several liability can avoid the disproportion between the negligence and the liability but transfer the risk of some tortfeasors’ bankruptcy to the plaintiff. There is necessity to take joint liability and several liability respectively as the general rule with exceptions and two models are formed: joint liability is the general rule while the several liability is the exception and several liability is the general rule while the joint liability is the exception. Most countries take the first model while China takes the second one. Excluding the joint liability due to policy, the joint liability for internet service provider falls in the exception of the several liability in China, but the joint liability in this scenario is not proper. Environmental tort and medical tort taken as the exceptions in judicial practice are more reasonable.