野生动物致人损害责任研究
发布时间：2018-11-17 08:48
【摘要】： 我国幅员辽阔,自然环境复杂,拥有丰富的野生动物资源,种类繁多的野生动物是我国一项宝贵的自然资源。近年来,随着生态环保意识的加强和国家对野生动物保护的各项措施逐步落实,我国的野生动物种群得以恢复、繁衍、壮大。然而,一个问题随之而来,这就是,各地野生动物致人损害事件频繁发生,野生动物保护与当地公民切身利益的矛盾日益突出。因此,对野生动物侵权造成的损害进行合理的赔偿和救济,不但是出于以人为本的法治社会要求,而且也直接关系到公民保护野生动物的积极性。 就一般法理而言,野生动物致人损害责任体现了动物权利与人权的矛盾与冲突,解决这一冲突可以借鉴国家赔偿领域中的公共负担理论,将野生动物致人损害视为某种公共负担的不平衡,由国家给予受害者以弥补和救济。这样也符合和谐社会中法的公平与秩序的价值取向。 但是,现有法律、法规仅是站在野生动物保护的角度,对于国家重点保护的野生动物致人损害的补偿作了及其粗略的规定。在司法实践中,可以直接援引的只有《野生动物保护法》及其实施条例的相关规定,然而这些规定不但对于野生动物致人损害责任的承担和救济附加了诸多限制,并且连最基本的可操作性也同样欠奉。因此,不难得出结论,我国现行的立法无法切实保障受害人的损失得到合理的救济。 根据侵权法的原理,并基于野生动物资源为国家所有的法律属性,可以认为野生动物致人损害是一类特殊的侵权行为,应由国家相关的主管机关承担侵权赔偿责任,而非行政补偿责任。同时,关于野生动物致人损害责任的立法体系应当从野生动物保护的从属制度的尴尬地位中摆脱出来,脱离现行《野生动物保护法》的框架,并成为未来的《侵权责任法》的重要组成部分。 为使野生动物致人损害责任体系更趋合理化,可以借鉴如今盛行的侵权行为社会化理念,将野生动物致人损害责任的赔偿制度进一步完善。亦即将野生动物所造成的损害视为“社会损害”,使野生动物致人损害责任的赔偿制度与责任保险、损害填补基金、社会安全体制等填补的保障制度密切衔接,通过高度设计的损害填补保障制度,由社会上多数人承担和消化损害。
[Abstract]:China has a vast territory, complex natural environment, rich wildlife resources, a variety of wildlife is a valuable natural resource in China. In recent years, with the strengthening of ecological awareness of environmental protection and the implementation of national measures to protect wildlife, the wildlife population in China has been restored, multiplied and expanded. However, a problem follows, that is, wildlife damage incidents occur frequently and the conflict between wildlife protection and local citizens' vital interests is increasingly prominent. Therefore, the reasonable compensation and relief for the damage caused by wildlife infringement is not only due to the people-oriented rule of law social requirements, but also directly related to the enthusiasm of citizens to protect wildlife. In terms of general jurisprudence, the liability for damage caused by wildlife reflects the contradiction and conflict between animal rights and human rights, which can be solved by drawing lessons from the theory of public burden in the field of national compensation. Treating human damage caused by wildlife as an imbalance of some public burden, the State provides the victim with redress and relief. This also accords with the value orientation of law fairness and order in a harmonious society. However, the existing laws and regulations are only from the point of view of wildlife protection, and the compensation for the damage caused by wildlife protected by the state is roughly stipulated. In judicial practice, only the relevant provisions of the Wildlife Protection Law and its implementing regulations can be directly invoked. However, these provisions not only impose many restrictions on the liability and relief for damage caused by wildlife, And even the most basic maneuverability is also lacking. Therefore, it is not difficult to draw the conclusion that the current legislation of our country can not guarantee the victim's loss to get reasonable relief. According to the principle of tort law, and based on the legal attribute that wildlife resources are owned by the state, it can be considered that the damage caused by wild animals is a special kind of tort, and the relevant authorities of the state should bear the liability for tort compensation. Rather than administrative compensation liability. At the same time, the legislative system on liability for damage caused by wild animals should be removed from the embarrassing status of the subordinate system of wildlife protection and from the framework of the current Wildlife Protection Act. And become an important part of the future Tort liability Law. In order to rationalize the liability system of damage caused by wild animals, we can learn from the popular social concept of tort and perfect the compensation system of liability for human damage caused by wild animals. The damage caused by wild animals will also be regarded as "social damage," so that the compensation system for human damage caused by wildlife is closely linked to the compensation system for liability insurance, the damage compensation fund, the social security system, and so on. Through the highly designed damage compensation system, the majority of people in society bear and digest the damage.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923;D922.6
本文编号：2337195
[Abstract]:China has a vast territory, complex natural environment, rich wildlife resources, a variety of wildlife is a valuable natural resource in China. In recent years, with the strengthening of ecological awareness of environmental protection and the implementation of national measures to protect wildlife, the wildlife population in China has been restored, multiplied and expanded. However, a problem follows, that is, wildlife damage incidents occur frequently and the conflict between wildlife protection and local citizens' vital interests is increasingly prominent. Therefore, the reasonable compensation and relief for the damage caused by wildlife infringement is not only due to the people-oriented rule of law social requirements, but also directly related to the enthusiasm of citizens to protect wildlife. In terms of general jurisprudence, the liability for damage caused by wildlife reflects the contradiction and conflict between animal rights and human rights, which can be solved by drawing lessons from the theory of public burden in the field of national compensation. Treating human damage caused by wildlife as an imbalance of some public burden, the State provides the victim with redress and relief. This also accords with the value orientation of law fairness and order in a harmonious society. However, the existing laws and regulations are only from the point of view of wildlife protection, and the compensation for the damage caused by wildlife protected by the state is roughly stipulated. In judicial practice, only the relevant provisions of the Wildlife Protection Law and its implementing regulations can be directly invoked. However, these provisions not only impose many restrictions on the liability and relief for damage caused by wildlife, And even the most basic maneuverability is also lacking. Therefore, it is not difficult to draw the conclusion that the current legislation of our country can not guarantee the victim's loss to get reasonable relief. According to the principle of tort law, and based on the legal attribute that wildlife resources are owned by the state, it can be considered that the damage caused by wild animals is a special kind of tort, and the relevant authorities of the state should bear the liability for tort compensation. Rather than administrative compensation liability. At the same time, the legislative system on liability for damage caused by wild animals should be removed from the embarrassing status of the subordinate system of wildlife protection and from the framework of the current Wildlife Protection Act. And become an important part of the future Tort liability Law. In order to rationalize the liability system of damage caused by wild animals, we can learn from the popular social concept of tort and perfect the compensation system of liability for human damage caused by wild animals. The damage caused by wild animals will also be regarded as "social damage," so that the compensation system for human damage caused by wildlife is closely linked to the compensation system for liability insurance, the damage compensation fund, the social security system, and so on. Through the highly designed damage compensation system, the majority of people in society bear and digest the damage.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D923;D922.6
【引证文献】
相关硕士学位论文 前2条
1 高芳;野生动物致人损害责任的若干法律问题探究[D];沈阳师范大学;2012年
2 邢璐;论饲养动物损害责任[D];南京师范大学;2012年
，本文编号：2337195
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