民法论文论侵害生命权所致第三人损害的民法救济.doc

论侵害生命权所致第三人损害的民法救济 论侵害生命权所致第三人损害的民法救济 Comments on Civil Relief for the Third Partys Damage Caused by Trespass to the Right to Life 【摘要】 侵害生命权损害赔偿制度历来是侵权法研究的热点。本文从生命权的本质和侵害生命权损害赔偿的特征入手,详尽阐述了侵害生命权损害赔偿制度的基本理论。由于继受请求权的缺陷,本文认为,有必要确定第三人的固有请求权。传统侵害生命损害赔偿制度缺乏对死亡所致损害的细致剖析。论文将侵害生命权所致损害分为死者所受损害和第三人所受损害,并且进一步指出二者之间的区别和各自的分类。第三人是侵害生命权所致损害赔偿制度救济的核心。论文针对具体的损害类型提出了相应的请求权基础和损害赔偿请求权主体范围。最后,论文对侵害生命权损害赔偿救济体系的立法提出了建议,以期达到对受害人利益更好保护的目的。【Abstract】 The purpose of remedy under tort law is to attain the goal of the full compensation. Under the full compensation, the remedy for illegality should make the victims the same as before tort occurred. The two main types of tort relief are restitution and damages. In the cases of trespass to the right to life, there is no way to remove the death status, so we need for monetary compensation to cover the damage. Some scholars believe that the deceaseds heirs have the right to inherit the claim right. Others believe that the indirect victim can claim damages to make him back to the status before tort occurred, and the claim right is the third partys inherent right. Who has the right to claim damages? What is the legal basis that the plaintiff, who claims damages, can gain the compensation based on? Is the claim right inheritable or inherent? Which kind of damage can the plaintiff claim? The article is divided into four parts to analyze these questions.The first part of the article is the introduction of the right to life. In this part we also have analyzed the characteristics of damages for trespass to the right to life. First of all, we have introduced the views of the right to life, and then summed up the core elements of the right to life. Secondly, after discriminating between damage and damages, we have classified the damage caused by trespass to the right to life. Finally, though classifying the damage caused by trespass to the right to life, the paper points out the differences between the damages for the right to life and the damages for general tort. The differences are the main issues what will be discussed in this article.In the second part, the article has analyzed the position of the third party in the remedy system of tort law. In this part, two main representative theories of damages for the right to life, which are the theory of the inheritable claim right and the theory of the inherent claim right, are mentioned. The theory of the inheritable claim right is the main theory among academia and practice in Japan. This theory has many merits. The victims can get large amount of damages. And this theory can ease the imbalance between the amount of damages for injury in person and the amount of damages for trespass to the right to life. In this theory, we should admit the right to life is an independent kind of personal rights. At the same time, the theory of the inheritable claim right has some disadvantages. During the deceaseds lifetime, he can not claim the damages for the right to life. It is legal fiction and non-uniform in theory that the close relatives of the dead get the claim right through inheritance. The remote relatives of the dead may gain huge benefits by accident. Only the inheritable blood can be under the protection, so the scope of the claim rights main body is too narrow, and the third party, who actually suffered the damage, can not claim the damages. When the minors or unmarried persons are dead, the parents may inherit the expecting income of the children, it is contrary to the laws of nature. The theory of the inherent claim right is the main theory in the civil law systems, the Anglo-American law systems and Taiwan of China. In comparison, the theory of the inherent claim right can declare the third partys inherent rights, and give the third party the right to claim damages. Moreover, this theory can avoid making the dead to claim against the tort-feasor. This method can avoid embarrassment in theory, and simplify the cumbersome proceedings. From what have been discussed, we find that in order to protect the third party better, the theory of the inherent claim right is necessary to locate under the remedy system of trespass to the right to life. In the third part of the article, we have analyzed the claim rights main body in the remedy system of trespass to the right to life. First, we have divided the damage caused by trespass to the right to life into damage to property and damage to spirit.Then, the damage to property is divided into suffered losses and lost profits. The particular main body can claim special types of damage. After that, we have analyzed the foundation of the claim right and the scope of the main body of each damage. In the field of damage to property, the direct victim can claim for the loss of earnings. The third party, who have paid for the cost to save the direct victims life or deal with the funeral, can claim damages. The persons who need maintenance fee can claim the loss of dependent benefits. The third party, who have taken care of the direct victim and dealt with the funeral, can claim for expecting loss of earnings. In the area of damage to spirit, the direct can claim the mental damage suffered before his death. The close relatives of the deceased can claim for the mental damages of his own. The third party who had witnessed the process of the death can claim the nervous shock.In the final part of the article, the Chinas current state of legislation for the remedy system of trespass to the right to life was mainly discussed. And the article has put forward some proposals further on the drawing up of tort law. At present, the remedy system of trespass to the right to life in China is imperfect, and there are many conflicting rules in different legislation and legal interpretation. Some meanings of the legal terminology are not clear, so it is hard for the judge to use. The legislation in China divides the trespass to the right to life into tort, criminal act, violation of state and so on. This approach is good in determining the elements of the violations, but we will not notice the common of different kinds of violations. In this paper, three aspects of reform should be carried out in the remedy system of trespass to the right to life. First of all, we should admit that the damage caused by trespass to the right to life is varied. Under the full compensation principle, we should expend the types of the damage caused by trespass to the right to life. Secondly, our country should abandon the rigid idea of equality to recognize the various differences between the victims. The actual damage and the causal relation should be the main elements to alter the amount of damages. At the same time, the court should strive to enhance the level of compensation to the victims, and appropriately scatter the tort-feasorsliability. Finally, we should focus on the damage of the third party, and give the third party inherent right to claim. At the same time, we should abandon the old approach by which the trespass to the right to life was divided into several kinds based on the approach of the behavior. A coordinate remedy system of trespass to the right to life should be set up in the future.Finally, it should be indicated that there may be many defects of this article. However, if the article can make more scholars pay more attention to the remedy of trespass to the right to life, it will be useful for the protection of the victim and the integrity of the remedy of tort law. 【关键词】 生命权; 第三人; 损害赔偿【Key words】 Right to Life; Third Party; Damages 论侵害生命权所致第三人损害的民法救济内容提要 4-6 引言 6-8 第一章 生命权及侵害生命权损害赔偿的特征 8-16 一、生命权的内涵及特征 8-10 二、侵害生命权所致损害 10-12 三、侵害生命权损害赔偿的特征 12-16 第二章 第三人在侵害生命权损害赔偿制度中的地位 16-22 一、第三人的概念 16 二、继受请求权和固有请求权 16-18 三、采用继受请求权的理论障碍 18-19 四、确定第三人固有请求权的法理基础 19-22 第三章 侵害生命权损害赔偿制度中权利主体的类型化 22-37 一、财产损害的权利主体 22-31 二、非财产损害的权利主体 31-37 第四章 侵害生命权所致第三人损害救济制度的改进建议 37-43 一、我国侵害生命权所致第三人损害救济制度的立法现状 37-39 二、我国侵害生命权所致第三人损害救济制度的改进路径 39-43 结论 43-44 注释 44-51 参考文献 51-54 后记 54-55 论文摘要 55-58 Abstract 58-60