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经济分析理论虽然对侵权法的正当性解释具有重要意义,但是其将效率设定为侵权法的首要功能,其合理性颇值怀疑,而且作为经济分析基础的汉德公式的实际用途也值得怀疑,过错的“成本—收益”计算之结果无法令人信服。并且经济分析理论过分专注于侵权行为的遏制功能,完全忽视矫正正义理论的价值,纯粹基于功利考量设置侵权责任会带来法律自我无效的恶果。
Although the theory of economic analysis is of great significance to the justification of tort law, its rationality is quite doubtful when its efficiency is set as the primary function of tort law. Moreover, the practical use of the Herd formula, which is the basis of economic analysis, is also questionable , Faulty “cost - benefit” calculation results can not be convincing. Moreover, the theory of economic analysis is overly focused on the deterrent function of infringement, completely ignoring the value of the theory of corrective justice, and setting the responsibility of infringement on the basis of utilitarian considerations leads to the ineffectiveness of law itself.