试论共同危险行为中按份责任的可行性

On the Feasibility of Responsibility by Share in Joint Dangerous Behavior

摘要: 共同危险行为是一种特殊的多数人侵权行为。关于共同危险行为人承担连带责任的学说混淆了行为人承担连带责任基础与行为人承担责任基础的区别。共同过失理论、危险理论以及推定的因果关系理论只能解释共同危险行为人需要承担责任，但并不能解释其需要承担连带责任，因此承担连带责任存在一定的不合理性。本文试图从否定连带责任的理论基础入手，分析在共同危险行为中按份责任适用的可行性。

Abstract: As a kind of special tort of the majority, joint dangerous behavior has certain particularity. The theory of joint liability confuses the difference between the basis of joint liability and the basis of liability. The contributory negligence theory, the danger theory and constructive causation theory can only explain that the joint dangerous act tort feasors needs to bear responsibility, but cannot explain the joint liability. There is some irrationality in bearing joint and several liability. So this paper tries to start from the theoretical basis of denying joint and several liability to analyze the feasibility of applying the liability according to share in joint dangerous acts.