共同危险行为诉讼免责抗辩研究

共同危险行为诉讼中的免责抗辩在理论和实践中都存在很多问题,但对这些问题的讨论大多集中在实体法领域,难以得出较为合理的解决途径.应当认识到,共同危险行为诉讼中免责抗辩的本质是对因果关系推定效果的排除,故应当从诉讼法的视角,以适用条件及证明标准对免责抗辩进行规制,落实心证公开保障其本原价值,并确立推定加害人为免责抗辩的新途径,从而解决我国共同危险行为诉讼中免责抗辩产生的问题,提高共同危险行为理论适用的合理性。

A Research on the Liability Defense of the Litigation Common Dangerous Behavior

The Liability Defense in the Litigation Common Dangerous Behavior has many theory and practice. But the discussions are mostly focused in the field of Substantial law. It reasonable solutions. It should be realized that the core of the Liability Defense in the Litigati problems both in is hard to get the on Common Dan- gerous Behavior is exclusive to the effect of causation presumption. Therefore we should regulate the Liability Defense with suitable conditions and standard proof in the perspective of procedural law, carry out the exposi- tion of judgment to ensure the primary value, set up the way of presumed perpetrator as the new solution for the Liability Defense so as to solve the problem of the Liability Defense in the Litigation Common Dangerous Behavior and raise the reasonability of applicability of the theory of common dangerous behavior.