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我国《合同法》第120条被认为是关于过失相抵规则的规定,对过失相抵规则的理论依据、构成要件进行分析有助于在司法上准确地予以适用。特殊情形下的第三人与有过失行为应视为受害方过失而适用过失相抵规则。本文认为过失相抵规则与减损规则关注受害方行为的时间点不同、适用的法律效果不同,有必要在适用上对两个规则予以区分。过失相抵规则可由法官主动适用,在决定违约方赔偿减额时应对过失、原因力综合考虑。
Article 120 of the Contract Law of China is considered as a provision on the rules of negligence, and analyzing the theoretical basis and components of the rules of negligence helps to apply it in a judicatory way. A third party under special circumstances and a negligent act shall be regarded as the negligent application of the negligent principle by the victim. In this paper, it is considered that the rules of negligence are different from the rules of derogation when they are concerned with the victim’s behavior. The applicable legal effects are different, so it is necessary to make a distinction between the two rules. The rules of negligence can be proactively applied by the judge. When determining the defaulting party to compensate for the derating, the negligence should be taken into consideration.