論「專家」之民事責任

Abstract

隨著社會分工細緻化，「專家」在現代社會中扮演不可或缺的角色。相較於一般職業，專家享有制度性的「壟斷特權」，且與契約相對人及社會大眾間存在高度的「信賴關係」，使其在民事責任規範上有獨立探討之必要。本文以整體「專家」群體為研究對象，分別自「契約責任」與「侵權行為責任」兩大領域進行檢討，嘗試建構我國專家民事責任之基本體系。 在「契約責任」方面，專家所負之主給付義務原則上應屬於「手段債務」，其注意義務則應以「該行業從業者之通常水準」為判準；同時，基於資訊不對等與信賴關係等理由，專家另應負有忠實義務、告知說明與警告義務、保密義務等其他契約義務。而就專家對「第三人」之契約責任上，雖比較法上曾提出各式擴張契約效力之見解以期解決專家第三人責任之困境，然本文認為其不僅有任意虛構當事人意思之嫌，更將允許專家任意免責，並不妥適。 於「侵權行為責任」上，就民法第184條第1項前段而言，於「過失」之要件上，本文認為應以對於可能受害之被害人之「可預見性」劃定注意義務之範圍，同時得以藉由「期待權」概念之引入，於遺囑無效案件中突破權利侵害要件之限制。就民法第184條第1項後段上，部分見解認為得以透過對其「主觀歸責」與「違法性」要件之擴大解釋，以處裡部分專家責任之案型，然本文認為其不僅悖離文義、與體系解釋不符，更恐流於法官恣意，並不可採。而就民法第184條第2項上，本文認為應可透過對於「保護他人法律」與「保護對象範圍」之妥善解釋，以解決專家責任中純粹經濟上損失保護之難題。末者，就其他特殊侵權行為責任上，礙於責任主體、保護客體與特別法之限制，專家責任之案型原則上應無消費者保護法無過失責任之適用，其他特別法上賠償責任規定與民法之競合關係，則應視其立法目的而定。

With the increasing refinement of professional specialization in society, "professionals" play an indispensable role in the modern era. Compared to ordinary occupations, professionals enjoy institutional "monopoly privileges" and maintain a profound "relationship of trust" (fiduciary relationship) with their contractual counterparts and the public. This necessitates an independent jurisprudential inquiry into the norms governing their civil liability. Taking the collective group of "professionals" as the research subject, this thesis examines the two major domains of "contractual liability" and "tort liability," endeavoring to construct a fundamental framework for the civil liability of professionals under Taiwanese law. In terms of "contractual liability," the primary performance obligation borne by professionals should, in principle, be classified as an "obligation of means." The standard for their duty of care should be evaluated based on the "ordinary standard of practitioners within the respective profession." Furthermore, owing to the high degree of information asymmetry between professionals and their clients, alongside the ensuing relationship of trust, professionals are also bound by other contractual obligations, including fiduciary duties, duties to inform, explain, and warn, as well as duties of confidentiality. Regarding the contractual liability of professionals toward "third parties," although comparative law has proposed various theories expanding the protective effects of contracts to resolve the dilemma of third-party liability, this thesis argues that such approaches are inappropriate. They not only risk arbitrarily fabricating the parties' true intentions but also improperly allow professionals to unilaterally exempt themselves from liability. In the realm of "tort liability," specifically concerning the first sentence of Article 184, Paragraph 1 of the Civil Code, this thesis asserts that the element of "negligence" should be delineated by the "foreseeability" of potential victims to establish the scope of the duty of care. Concurrently, by introducing the concept of the "expectation right," the restriction posed by the "infringement of a right" element can be overcome in cases involving invalid wills. Regarding the second sentence of Article 184, Paragraph 1 of the Civil Code, some perspectives suggest that expanding the interpretation of its "subjective fault" and "unlawfulness" elements could address certain types of professional liability cases. However, this thesis maintains that such an approach is untenable, as it deviates from the literal meaning of the statute, conflicts with systematic interpretation, and risks descending into judicial arbitrariness. As for Article 184, Paragraph 2 of the Civil Code, this thesis contends that the challenge of protecting against pure economic loss in professional liability can be resolved through a proper interpretation of "statutes intended for the protection of others" and the "scope of the protected subjects." Lastly, regarding other special tort liabilities, due to the limitations of the protected subject matter and special legislation, the strict liability under the Consumer Protection Act should, in principle, not apply to professional liability cases. The concurrence between the compensation liability provisions in other special laws and the Civil Code should be determined based on their respective legislative purposes.