人身损害赔偿诉讼时效问题研究
发布时间：2018-09-05 14:39
【摘要】：新公布的《中华人民共和国民法总则》在第九章规定了诉讼时效制度,可见诉讼时效制度的重要程度。随着人们对人权理论的认知逐渐提高,越来越多的人开始关注自身的合法权益,尤其是与生命健康息息相关的人身权益。在人身权利受到不法侵害时,人们通常选择以法律武器维护自身利益。人身损害赔偿案件愈发多见,且种类多样,案情复杂。而与其相对的,是我国现行法中关于人身损害赔偿诉讼时效的立法并不完备。具体来讲,对于适用范围、诉讼时效的起算、时效期间的长短等问题均未得到很好的解决,以至于实际运用中显现出许多问题。本文即是对人身损害赔偿诉讼时效制度立法完善的探讨。第一章从时效制度的价值、特点以及现行法律相关规定三个方面对其进行概括性的阐述。第二章对人身损害赔偿的起算点进行了介绍,通过典型案例反应可法实践中的做法,介绍了学术界的客观标准、主观标准和请求权可行使理论儿种观点;而从国外立法对起算点的经验,看出越来越多的国家选择在权利人现实上可行使权利时起算。最后对人身损害诉讼时效的立法完善上肯定了从权利人可行使权利时起算。第三章介绍了人身损害诉讼时效期间,从司法实践角度,以及学术界对我国人身损害赔偿的观点,可以发现我国的人身损害诉讼时效期间过短,不利于对当事人权利的保护,而国际上对人身损害赔偿诉讼时效期间的规定普遍较长。建议人身损害赔偿诉讼时效应该予以延长至10年,而对于人身损害赔偿建议取消适用最长诉讼时效制度。第四章介绍违约与侵权诉讼时效的适用,列举了国际上违约与侵权竞合时的做法以及学术界的理论。提出违约与侵权的人身损害赔偿诉讼时效应该一体化,因为两种责任承担方式的差异并不明显。第五章列举了交通事故、环境污染、医疗损害以及未成年遭受性侵害的特殊人身损害类型,具体包括:在交通事故人身损害赔偿诉讼时效中,介绍了交通事故损害赔偿时效起算点的确定,而对于后继损失诉讼时效的计算,应在可以确定全部损失数额之后开始时效期间的计时;在环境侵权人身损害诉讼时效中,突出环境侵权因果关系难以断定这一问题对诉讼时效的影响,应当是自权利人知道且应当知道权利受到侵害,并明确加害人及确定损害由其引起时起算,而对于那些潜伏期长于二十年最长时效期间的环境侵权,可不适用最长诉讼时效制度。医疗损害赔偿诉讼时效中,起算点的确定则应本着保护患者这一弱势群体的精神,尽可能不运用“应当知道”来推测,把标准细化为从患者所受损害被发现或确诊,并能确定损害后果与医疗机构的治疗行为存在因果关系时起算。而对于未成年受到性侵害的诉讼时效建议从受害人年满21周岁,且脱离共同家庭生活时起算。
[Abstract]:The newly published General principles of Civil Law of the people's Republic of China stipulate the system of limitation of action in Chapter 9, which shows the importance of the system of limitation of action. With the gradual improvement of human rights theory, more and more people begin to pay attention to their legitimate rights and interests, especially the personal rights and interests which are closely related to life and health. When the personal rights are infringed unlawfully, people usually choose to defend their own interests with legal weapons. Personal injury compensation cases more and more, and the variety of complex cases. On the other hand, the legislation on limitation of action for personal injury in the current law of our country is not complete. Specifically, the problems of the scope of application, the beginning of the limitation period and the length of the limitation period have not been well solved, so that a lot of problems appear in the practical application. This article is a probe into the perfection of the statute of limitations system of personal injury compensation. The first chapter expounds the limitation system from three aspects: its value, characteristics and relevant provisions of the current law. The second chapter introduces the starting point of compensation for personal injury, through the typical case reaction can be done in practice, introduced the academic objective criteria, subjective standards and claims can be exercised in theory. From the experience of foreign legislation, we can see that more and more countries choose to exercise their rights in reality. Finally, the legislation of the statute of limitations for personal injury is confirmed from the time when the right holder can exercise the right. The third chapter introduces the period of limitation of action for personal injury, from the angle of judicial practice, as well as the point of view of academic circles on the compensation for personal injury in our country, we can find that the period of limitation of action for personal injury in our country is too short, which is not conducive to the protection of the rights of the parties. However, the provisions of limitation period for personal injury compensation are generally long in the world. It is suggested that the limitation of action for personal injury should be extended to 10 years, while the system of maximum limitation of action should be abolished for compensation for personal injury. The fourth chapter introduces the application of the limitation of breach of contract and tort, enumerates the international practice of concurrence of breach of contract and tort and the theory of academia. It is suggested that the limitation of action for personal injury should be integrated, because the difference between the two kinds of liability is not obvious. The fifth chapter enumerates the traffic accident, the environmental pollution, the medical treatment damage as well as the minor suffered the special personal injury type, including: in the traffic accident personal injury compensation action prescription, This paper introduces the determination of the starting point of limitation period for compensation for traffic accident damage, and for the calculation of limitation period of subsequent loss, the timing of the period of limitation period should begin after the total amount of loss can be determined, and in the statute of limitations of action for personal injury of environmental tort, Highlighting the causality of environmental tort is difficult to determine the impact of this problem on the statute of limitations. It should be calculated from the time when the obligee knows and should know that his rights have been infringed, and clearly defines the perpetrator and determines that the damage is caused by it. For those environmental tort whose incubation period is longer than 20 years, the maximum limitation period system can not be applied. In the limitation of action for medical damages, the starting point should be determined in the spirit of protecting the vulnerable group of patients, and should not use "should know" as far as possible to speculate, and refine the standard to be found or diagnosed from the damage suffered by the patient. And it can determine the causality between the damage and the treatment behavior of the medical institution. The statute of limitations for underage sexual assault begins when the victim reaches the age of 21 and is separated from common family life.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
本文编号：2224587
[Abstract]:The newly published General principles of Civil Law of the people's Republic of China stipulate the system of limitation of action in Chapter 9, which shows the importance of the system of limitation of action. With the gradual improvement of human rights theory, more and more people begin to pay attention to their legitimate rights and interests, especially the personal rights and interests which are closely related to life and health. When the personal rights are infringed unlawfully, people usually choose to defend their own interests with legal weapons. Personal injury compensation cases more and more, and the variety of complex cases. On the other hand, the legislation on limitation of action for personal injury in the current law of our country is not complete. Specifically, the problems of the scope of application, the beginning of the limitation period and the length of the limitation period have not been well solved, so that a lot of problems appear in the practical application. This article is a probe into the perfection of the statute of limitations system of personal injury compensation. The first chapter expounds the limitation system from three aspects: its value, characteristics and relevant provisions of the current law. The second chapter introduces the starting point of compensation for personal injury, through the typical case reaction can be done in practice, introduced the academic objective criteria, subjective standards and claims can be exercised in theory. From the experience of foreign legislation, we can see that more and more countries choose to exercise their rights in reality. Finally, the legislation of the statute of limitations for personal injury is confirmed from the time when the right holder can exercise the right. The third chapter introduces the period of limitation of action for personal injury, from the angle of judicial practice, as well as the point of view of academic circles on the compensation for personal injury in our country, we can find that the period of limitation of action for personal injury in our country is too short, which is not conducive to the protection of the rights of the parties. However, the provisions of limitation period for personal injury compensation are generally long in the world. It is suggested that the limitation of action for personal injury should be extended to 10 years, while the system of maximum limitation of action should be abolished for compensation for personal injury. The fourth chapter introduces the application of the limitation of breach of contract and tort, enumerates the international practice of concurrence of breach of contract and tort and the theory of academia. It is suggested that the limitation of action for personal injury should be integrated, because the difference between the two kinds of liability is not obvious. The fifth chapter enumerates the traffic accident, the environmental pollution, the medical treatment damage as well as the minor suffered the special personal injury type, including: in the traffic accident personal injury compensation action prescription, This paper introduces the determination of the starting point of limitation period for compensation for traffic accident damage, and for the calculation of limitation period of subsequent loss, the timing of the period of limitation period should begin after the total amount of loss can be determined, and in the statute of limitations of action for personal injury of environmental tort, Highlighting the causality of environmental tort is difficult to determine the impact of this problem on the statute of limitations. It should be calculated from the time when the obligee knows and should know that his rights have been infringed, and clearly defines the perpetrator and determines that the damage is caused by it. For those environmental tort whose incubation period is longer than 20 years, the maximum limitation period system can not be applied. In the limitation of action for medical damages, the starting point should be determined in the spirit of protecting the vulnerable group of patients, and should not use "should know" as far as possible to speculate, and refine the standard to be found or diagnosed from the damage suffered by the patient. And it can determine the causality between the damage and the treatment behavior of the medical institution. The statute of limitations for underage sexual assault begins when the victim reaches the age of 21 and is separated from common family life.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
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