享乐损害赔偿制度研究
发布时间：2018-07-20 21:13
【摘要】：在经济飞速发展的今天,社会财富日益增多,人们的物质生活水平越来越高,同时,人们的人权意识和法律意识也在不断增强,对精神层面的生活提出了更高的要求,但现行法律对权利的保障还不够完善,在我国,非财产损害未作细致划分,而被笼统的归入“精神损害”的范畴,我们的生命仍然会受到来自各方面的侵害,如对生命本身价值的侵害,法律就很难做到对该权利的全面保护。人们常说,生命无价。生命是珍贵的,是丰富多彩的,是拿什么我们都不愿意交换的,而当我们无法为生命的价值作出估算时,我们如何能够获得充分的损害赔偿,我们又如何保护生命的价值,我们的权利又将如何实现呢?那么在人生价值中,享受简单的人生乐趣该被赋予多少价值呢?享受和家人在海边玩耍的乐趣该被赋予多少价值?美国以及欧洲的许多国家就承认这样一类损害赔偿,即享乐损害赔偿,意在补偿受害人“生活乐趣的丧失”或者“生命本身的价值的丧失”。本文从享乐损害赔偿制度的产生与发展入手,分析享乐损害赔偿制度存在的理论依据以及如何适用该制度的原则和规则,进而探讨如何在我国侵权法上设置该制度,以期为我国的侵权法上的非财产损害赔偿制度的研究贡献自己的绵薄之力。本文共四个部分,第一部分阐述的是享乐损害赔偿制度的产生与发展。首先是介绍了对享乐损害概念的提出具有里程碑意义的Sherrod诉Berry案,然后在案例分析中引出享乐损害的概念,进而分析享乐损害的构成要件,最后介绍了享乐损害赔偿制度在美国以及欧洲各国的发展概况。第二部分是对享乐损害赔偿制度的理论依据进行分析,本文首先从法律价值的角度分析,该制度是人权保护、正义、秩序、效率以及法治之内在要求。然后分析享乐损害不同于其他非财产损害的,具有独立性和可赔性。最后从充分补偿受害人的角度分析该制度存在的必要性和合理性。第三部分是对如何确定享乐损害赔偿金的数额进行探讨,本文在研究国内外非财产损害赔偿适用的原则的基础上,提出法官自由裁量原则、适当补偿原则以及合理限制原则来确定享乐损害赔偿金的数额,并在分析美国在确定享乐损害赔偿金的评估标准和计算方法的基础上提出了自己的观点。第四部分是对享乐损害赔偿制度在侵权法上的立法选择提出的建议,本文对享乐损害赔偿制度、举证责任的分配以及救济方式作出了具体的法条设计并说明了立法理由。
[Abstract]:With the rapid development of economy, the social wealth is increasing day by day, and people's material living standard is higher and higher. At the same time, people's consciousness of human rights and legal consciousness is also increasing, which puts forward higher demands on spiritual life. However, the protection of rights in the current law is not perfect. In our country, non-property damage has not been divided into details, but is classified as "spiritual damage", and our lives will still be infringed upon from all aspects. If the value of life itself is violated, it is difficult for the law to fully protect this right. People often say that life is priceless. Life is precious, colorful, and we don't want to trade anything, and when we can't estimate the value of life, how can we get adequate compensation for the damage, and how can we protect the value of life? How will our rights be realized? So in the value of life, the enjoyment of simple life should be given value? How much value should be given to the enjoyment of playing by the sea with your family? The United States and many countries in Europe recognize this kind of damages, namely, hedonic damages, which are intended to compensate victims for "loss of pleasure in life" or "loss of the value of life itself". Starting with the emergence and development of the hedonic damage compensation system, this paper analyzes the theoretical basis of the existence of the hedonic damage compensation system and the principles and rules of how to apply the system, and then discusses how to set up the system in the tort law of our country. In order to contribute to the study of non-property damage compensation system in tort law of our country. There are four parts in this paper, the first part is the emergence and development of hedonic damage compensation system. First of all, it introduces the landmark Sherrod v. Berry case about the concept of hedonic damage, and then introduces the concept of hedonic damage in the case analysis, and then analyzes the constitutive elements of hedonic damage. Finally, it introduces the development of hedonic damages system in the United States and European countries. The second part is to analyze the theoretical basis of hedonic damage compensation system. Firstly, from the perspective of legal value, this system is the inherent requirements of human rights protection, justice, order, efficiency and the rule of law. Then, it is analyzed that hedonic damage is different from other non-property damage and has independence and compensability. Finally, it analyzes the necessity and rationality of the system from the angle of fully compensating the victims. The third part is to discuss how to determine the amount of hedonic damages. On the basis of studying the applicable principles of non-property damages at home and abroad, this paper puts forward the principle of judge discretion. The principle of appropriate compensation and the principle of reasonable limitation are used to determine the amount of hedonic damages, and based on the analysis of the evaluation criteria and calculation methods of hedonic damages in the United States, the author puts forward his own views. The fourth part is the legislative choice of the hedonic damage compensation system in tort law. This paper designs the system of hedonic damage compensation, the distribution of the burden of proof and the way of relief, and explains the legislative reasons.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2134796
[Abstract]:With the rapid development of economy, the social wealth is increasing day by day, and people's material living standard is higher and higher. At the same time, people's consciousness of human rights and legal consciousness is also increasing, which puts forward higher demands on spiritual life. However, the protection of rights in the current law is not perfect. In our country, non-property damage has not been divided into details, but is classified as "spiritual damage", and our lives will still be infringed upon from all aspects. If the value of life itself is violated, it is difficult for the law to fully protect this right. People often say that life is priceless. Life is precious, colorful, and we don't want to trade anything, and when we can't estimate the value of life, how can we get adequate compensation for the damage, and how can we protect the value of life? How will our rights be realized? So in the value of life, the enjoyment of simple life should be given value? How much value should be given to the enjoyment of playing by the sea with your family? The United States and many countries in Europe recognize this kind of damages, namely, hedonic damages, which are intended to compensate victims for "loss of pleasure in life" or "loss of the value of life itself". Starting with the emergence and development of the hedonic damage compensation system, this paper analyzes the theoretical basis of the existence of the hedonic damage compensation system and the principles and rules of how to apply the system, and then discusses how to set up the system in the tort law of our country. In order to contribute to the study of non-property damage compensation system in tort law of our country. There are four parts in this paper, the first part is the emergence and development of hedonic damage compensation system. First of all, it introduces the landmark Sherrod v. Berry case about the concept of hedonic damage, and then introduces the concept of hedonic damage in the case analysis, and then analyzes the constitutive elements of hedonic damage. Finally, it introduces the development of hedonic damages system in the United States and European countries. The second part is to analyze the theoretical basis of hedonic damage compensation system. Firstly, from the perspective of legal value, this system is the inherent requirements of human rights protection, justice, order, efficiency and the rule of law. Then, it is analyzed that hedonic damage is different from other non-property damage and has independence and compensability. Finally, it analyzes the necessity and rationality of the system from the angle of fully compensating the victims. The third part is to discuss how to determine the amount of hedonic damages. On the basis of studying the applicable principles of non-property damages at home and abroad, this paper puts forward the principle of judge discretion. The principle of appropriate compensation and the principle of reasonable limitation are used to determine the amount of hedonic damages, and based on the analysis of the evaluation criteria and calculation methods of hedonic damages in the United States, the author puts forward his own views. The fourth part is the legislative choice of the hedonic damage compensation system in tort law. This paper designs the system of hedonic damage compensation, the distribution of the burden of proof and the way of relief, and explains the legislative reasons.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前1条
1 孙鹏;“生命的价值”——日本死亡损害赔偿的判例与学说[J];甘肃政法学院学报;2005年04期
，本文编号：2134796
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2134796.html
