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19世纪初起源于西方的“互有过失”制度,最初的性质是侵权行为加害人主张免除全部赔偿责任的抗辩事由。由于该原则有过度保护加害人之嫌疑,后来渐渐被更合法合理的“比较过失”制度所取代。我国《海商法》第一百六十九条规定亦借鉴了这一立法例,并保留了“互有过失”的表述。然而它与“共同过失”这一字面相近的表达,却有谬以千里的区别。基于这两个法律概念的比较,结合国内外的立法发展,浅析我国“互有过失”制度。
The system of “mutual negligence” originating from the West in the early 19th century was initially defended by the perpetrators of the infringement claim to waive the full liability for compensation. As the principle of excessive protection of the perpetrators of the suspect, and later gradually more legal and reasonable “comparative fault ” system replaced. The provisions of Article 169 of China’s Maritime Code also draw on this legislative enactment and retain the expression “mutual negligence”. However, it has a ridiculous difference when compared with the literal expression “common negligence.” Based on the comparison of the two legal concepts and the development of the legislation both at home and abroad, the author analyzes the system of “mutual negligence” in our country.