论文部分内容阅读
与有过失,学术上称之为过失相抵,是损害赔偿理论中的重要规则,通过比较过失情况来衡平当事人之间利益关系。与有过失规则源于朴素的公平正义观念和责任自负原则,是法律上诚实信用原则以及衡平观念的产物。与有过失规则自古已有之,但从确立到完善经历了一个不断演进的进程。通过分析与有过失规则的构成要件、具体司法适用以及在违约责任领域的学术争论试图展现出当今理论界对于该规则的研究现状,并希冀以此增加对该规则的学术关注度,以此为与有过失的立法完善提供理论指导。
It is an important rule in the theory of compensation for damages with negligence and academically referred to as negligence. It balances the interests of the parties by comparing the circumstances of negligence. The principle of fairness and justice stemming from simple rules of fault and the principle of responsibility and self-responsibility are the products of the principle of good faith in law and the concept of equity. With the rules of negligence have existed since ancient times, but from the establishment to perfection has undergone an evolving process. Through the analysis of the constitutional elements of the rules with negligence, the specific judicial application and the academic controversy in the field of liability for breach of contract, it attempts to present the present state of research on the rule in the theoretical circles and hopes to increase the academic attention to the rule as Provide theoretical guidance with imperfect legislation.