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我国现行立法对损害赔偿缺少统一的、体系性规定。作为构成赔偿责任的基本要素,损害客体从传统的人身财产、经济利益两分法逐渐走向融合,赔偿主体间的关系除了陌生人与合同相对人外,已经发展出了更多的中间类型,缔约过失责任、纯粹经济损失、违约中的精神损害等问题日益凸显,违约责任与侵权责任呈现出越来越多的交叉地带。鉴此,违约与侵权可整合至不法行为项下,统一由构成要件的符合性、损害范围的确定性、行为主体的可责性三阶层架构来整合成一套损害赔偿责任体系。同时,应将因果关系的适用限缩在责任成立层面,扩张可预见性原则在侵权责任中的应用,另增加损益相抵、与有过失等赔偿法的基本原则。在民法典的编纂过程中,必须据此构建统一的、有一定前瞻性的损害赔偿责任体系,以真正解决违约与侵权日益模糊的边界,以及介于两者之间的权益保护等问题。
The current legislation in our country lacks unified and systematic rules on damages. As the basic elements that constitute the liability, the damage object gradually merges from the dichotomy of traditional personal, property and economic interests. The relationship between the compensation parties has developed more intermediate types except for strangers and contractors, The liability of negligence, pure economic loss, spiritual damage in breach of contract and other issues have become increasingly prominent. The liability for breach of contract and tort liability have shown more and more cross-sections. As a result, breach of contract and infringement can be integrated into the wrongful act, unified by the conformity of constituent elements, the certainty of the scope of damage, the responsibility of the main actors of the three-tier structure to integrate into a system of liability for damages. At the same time, the application of causality should be limited to the establishment of responsibility, expanding the application of the principle of foreseeability in tort liability, and adding the basic principles of the law of compensation such as offsetting gains and losses and having negligence. In the process of compiling the Civil Code, a unified and certain forward-looking system of liability for damages must be established so as to truly solve the increasingly vague border between default and infringement and the protection of rights and interests between the two.