民事公益诉讼中赔礼道歉的形式化与实质化

Formalization and Materialization of Apology in Civil Public Interest Litigation

  • 摘要: 现有制度供给未能就民事公益诉讼责任承担作出有别于民事私益诉讼的规定,司法实践中往往参照民事私益诉讼的责任承担体系将赔礼道歉适用于民事公益诉讼中。民事公益诉讼中,赔礼道歉的适用虽有助于提高治理成效、降低规制成本,但更多地属于不良信息剔除工具,有别于其在私益诉讼中对被侵权人精神损害的补偿功能。在适用效果方面,强制执行难导致民事公益诉讼中赔礼道歉的形式意义大于实质意义,空洞化色彩突出。为消解针对赔礼道歉的合理性质疑,需将其从法律责任还原为道德责任,并探索尝试参与公益活动等新的责任承担方式,以实质地弥补侵权人对社会公共利益的损害。

     

    Abstract: The existing institutional supply has failed to make provisions for the assumption of liability in civil public interest litigation that are different from those in civil private interest litigation. In judicial practice, the system of liability assumption in civil private interest litigation is often referred to, and apologies are applied to civil public interest litigation. In civil public interest litigation, although the application of apology can help improve governance effectiveness and reduce regulatory costs, it is more of a tool for removing harmful information, which is different from its function of compensating for the mental damage of the infringed party in private interest litigation. In terms of application effect, the difficulty of compulsory enforcement leads to the formal meaning of apology in civil public interest litigation being greater than its substantive meaning, with a prominent hollowing out color. To dispel doubts about the reasonable nature of apologies, it is necessary to restore them from legal responsibility to moral responsibility, and explore new ways of assuming responsibility such as participating in public welfare activities to compensate for the harm caused by infringers to the public interest.

     

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