從歐洲侵權行為法觀點解析工程侵權行為之因果關係

黃立

中文摘要

侵權行為上基本的因果關係理論,面對變化無窮的社會態樣,常有不敷使用的感覺。由於歐洲侵權行為法的因果關係理論體系,非常完整,很適合解決比較困難的因果關係爭議。特別是在工程承攬方面,以介面廠商間的關係為例,雖然承攬人與業主間的承攬契約常有約定,承攬人應自行與其他承攬廠商協調介面衝突。可是個別承攬人與定作人有契約關係,與其他承攬人間卻沒有契約關係。縱然在內部關係有協調義務,若其他承攬人並不理會,就不能解決相互間介面衝突問題,例如甲承攬廠商已經完成之天花板被水電廠商施工時破壞,導致其需要重新修復,而有財產損失;另一方面,此種修復也使其工期延誤,可能被定作人課已違約處罰。此時除了請定作人協調外,通常只能尋求侵權行為法之救濟,而因果關係常是此種請求權的核心議題。因果關係對於侵權行為請求權能否成立,關係重大。法律通常會有許多減輕受害人舉證責任的制度來緩和因果關係之舉證困難。在無法條規定時,亦可以從法學理論去加以演繹,得出符合時代脈動與公平合理之結果。比較起來,歐洲侵權行為法基本原則雖然不是法律,卻是許多國際知名學者的智慧結晶。其所建立的制度體系上較為完滿,值得我國修法時之參考。本文亦以實際案例,使用相關理論解析,希望能對相關實務界解決爭議問題有所助益。

 

An Analysis on the Causation of Torts in Construction Works Based on European Torts Law

Li Hwang

abstract

When we try to solve all kinds of tort cases, the basic causation theory seems too simple to solve all the problems. Principles of European Tort Law have introduced complete causation system, which is more capable to solve conflicts in causation connection. Taking the work contract for instance, the contractor is bound to produce the work promised and the customer is bound to pay the remuneration agreed, but their contract might ask the contractor to coordinate the use to the same working site with other parallel contractor. But between these contractors, there is no contractual relationship, if any work has been interrupted by other contractor, they may only solve their conflict through tort law, abide the possible mediation through the customer or other institutions. The causation is often the core issue of the claim. Firstly, the author gives an overview of theories of causation, including the principles of conditio sine qua non, concurrent causes, alternative causes, potential causes, cumulative causes and uncertain partial causation and introduces how they work under our national legal systems, especially in the cases of construction. Secondly, interprets the concept and development of “die adaquanztheorie” and how the tort liability established by this theory. Thirdly, illustrates the special rules on causation in the areas of the environmental liability law, the biotech law and the market share liability to solve the problems of the causation which could not be easily established by the traditional rules. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. However, in some kinds of cases, such as injury caused by environment pollution, biotech or manufactured products, proving the existence of causation is the most difficulty part for a claimant. In the abovementioned areas, various formulations have evolved to ease the burden of proving causation in such situations. For example, market share liability is a legal doctrine that allows a plaintiff to establish a prima facie case against a group of product manufacturers for an injury caused by a product, even when the plaintiff does not know from which defendant the product originated. The doctrine is unique to the law of the United States and apportions liability among the manufacturers according to their share of the market for the product giving rise to the plaintiff's injury. Finally, the author discusses the tort liability in the cases of construction when the work was made by more than one contractor. In such cases, the work was made by two or more contractors simultaneously or successively and the damages caused by which one will be hard to find. Dose it is the same situations with the cases in the special areas and hence the special rules could be applied? This paper used this causation system to analysis related cases, to enhance the reader having a clear picture of framework of the causation and provide reference for legislation.