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《侵权责任法》的责任承担规则中,损益相抵规则是受到最普遍认同和接受的。但在侵权法体系中,损益相抵规则自身却存在难以克服的逻辑矛盾,导致该规则成为侵权法中的一大悖论。笔者将从损益相抵的概念悖论、价值悖论和适用范围悖论三方面来阐述该规则自身的逻辑矛盾,论证损益相抵规则虽然形式上符合一般社会观念对于公平和正义的朴素追求,但实质上却并不能与侵权责任法既有的逻辑要求和体系强制相协调,盲目地使用这一规则容易导致侵权法内部概念和逻辑的混乱。在现今我国侵权责任法的发展阶段,不适宜将损益相抵规则独立作为一种侵权责任承担规则。
The “liability tort law” responsibility to bear the rules, the principle of gain and loss is the most widely accepted and accepted. However, in the system of tort law, there is an insurmountable logical contradiction in the rules of gain and loss, which leads to the rule becoming a paradox in tort law. The author expounds the logic contradiction of the rule from the concept paradox, the paradox of value and the paradox of the scope of application, and demonstrates that although the rules of profit and loss are formally in line with the simple pursuit of fairness and justice of the general social concept, It can not be reconciled with the existing logical requirements and system coercion of Tort Liability Law. Using this rule blindly can easily lead to the confusion of internal concepts and logic of Tort Law. In the current stage of the development of Tort Liability Law in our country, it is not appropriate to take the independence of P & L as a rule to bear the tort liability.