民法论文论侵害生命权所致第三人损害的民法救济.doc
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1、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
2、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 sam
3、e 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
4、 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
5、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 c
6、haracteristics 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
7、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 par
8、t, 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
9、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
10、 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-un
11、iform 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, wh
12、o 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-
13、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 e
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- 民法 论文 侵害 生命 所致 第三人 损害 救济
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