“许云鹤案”引发的法理与道德问题研究
发布时间：2018-08-30 16:28
【摘要】：搀扶摔倒在地的老人是中华民族的美德，但是，这一天经地义的优良传统似乎正受到前所未有的威胁。从南京彭宇案、天津许云鹤案等案件的发生，我们可以找到其中的原因。这些案件都是在马路上与老人接触后引发的人身损害索赔事件，由此引发的社会影响非常之深远，已经使得许多民众看到摔倒在地的老人而不敢搀扶，不仅对现代中国国人道德伦理，甚至对祖国下一代教育都有着深刻的冲击。 本文通过以许云鹤案为主的案例分析的形式，首先简要阐述案情，使读者对这类案件有个大致了解。其次，从法律角度对以下方面展开分析：第一，侵权法中的因果关系判断。通过介绍大陆法与英美法中的因果关系相关理论，分析目前我国因果关系的研究现状，来论证本系列案件中的因果关系；第二，交通事故的责任划分。根据《道路交通安全法》第76条的变化，来分析有关案件的责任划分；第三，证据不足的情况下，诚信原则的坚持与各方利益的平衡，以及对公平原则在侵权法中的使用问题，其适用的范围、条件等，不能在无法认定时都用公平原则，这实质上形成了新的不公平，是公平原则的滥用。最后，是笔者对以上法理分析中提到的争议点的总结和建议，同时也会对其中某些未结案件的未来展望和大胆猜测。 笔者认为许云鹤案还是很有研究价值的。从实践价值讲，可以更好的检验法官的自由裁量水平，有助于提升当今我国司法落后的现状；另一方面，从理论上讲，，有关案件当中的事故责任认定和最终民事赔偿都有很大争议，通过程序上的公正执行和国内学理上的普遍观点，是可以逻辑判断出来的。而且，此类案件已经引发了国内有关道德与法律相关问题的质疑，究竟是遵从程序还是考虑情理，在没有证据的前提下，诚信原则如何体现，都是值得探讨的问题。
[Abstract]:Helping the fallen elderly is a virtue of the Chinese nation, but this well-established tradition seems to be under unprecedented threat. From the Nanjing Pengyu case, Tianjin Xu Yunhe case and other cases, we can find the reasons. These cases are all related to claims for personal injury caused by contact with the elderly on the road. The social impact caused by these cases is so far-reaching that many people have seen the elderly who fell to the ground without being able to help them. It has a profound impact not only on the moral ethics of modern Chinese, but also on the education of the next generation of the motherland. Through the case analysis of Xu Yunhe case, this paper first briefly expounds the case, so that the reader can have a general understanding of this kind of case. Secondly, the following aspects are analyzed from the angle of law: first, causality judgment in tort law. By introducing the relevant theories of causality in continental law and Anglo-American law, this paper analyzes the present situation of causality in China, and proves the causality in this series of cases. Secondly, the division of liability in traffic accidents. According to the changes in Article 76 of the Law on Road Traffic Safety, this paper analyzes the division of responsibilities in the relevant cases; third, in the case of insufficient evidence, the balance between the principle of good faith and the interests of all parties, and the use of the principle of fairness in tort law, The scope and conditions of its application can not be determined by the principle of fairness, which in essence forms a new unfair, which is the abuse of the principle of fairness. Finally, the author summarizes and suggests the controversial points mentioned in the above legal theory analysis, and at the same time, it also makes some future prospects and bold guesses about some of the outstanding cases. The author thinks Xu Yunhe case still has the research value very much. In terms of practical value, it can better test the level of discretion of judges and help to improve the current situation of judicial backwardness in our country; on the other hand, theoretically speaking, The identification of accident liability and the final civil compensation in the relevant cases are very controversial. It can be judged logically through the fair execution of procedure and the general viewpoint of domestic theory. Moreover, this kind of case has already caused the question about the morals and the law related question in the domestic, whether obeys the procedure or considers the reason, in the absence of evidence, how to embody the principle of good faith is worth discussing.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.1;D648;D920.5
本文编号：2213630
[Abstract]:Helping the fallen elderly is a virtue of the Chinese nation, but this well-established tradition seems to be under unprecedented threat. From the Nanjing Pengyu case, Tianjin Xu Yunhe case and other cases, we can find the reasons. These cases are all related to claims for personal injury caused by contact with the elderly on the road. The social impact caused by these cases is so far-reaching that many people have seen the elderly who fell to the ground without being able to help them. It has a profound impact not only on the moral ethics of modern Chinese, but also on the education of the next generation of the motherland. Through the case analysis of Xu Yunhe case, this paper first briefly expounds the case, so that the reader can have a general understanding of this kind of case. Secondly, the following aspects are analyzed from the angle of law: first, causality judgment in tort law. By introducing the relevant theories of causality in continental law and Anglo-American law, this paper analyzes the present situation of causality in China, and proves the causality in this series of cases. Secondly, the division of liability in traffic accidents. According to the changes in Article 76 of the Law on Road Traffic Safety, this paper analyzes the division of responsibilities in the relevant cases; third, in the case of insufficient evidence, the balance between the principle of good faith and the interests of all parties, and the use of the principle of fairness in tort law, The scope and conditions of its application can not be determined by the principle of fairness, which in essence forms a new unfair, which is the abuse of the principle of fairness. Finally, the author summarizes and suggests the controversial points mentioned in the above legal theory analysis, and at the same time, it also makes some future prospects and bold guesses about some of the outstanding cases. The author thinks Xu Yunhe case still has the research value very much. In terms of practical value, it can better test the level of discretion of judges and help to improve the current situation of judicial backwardness in our country; on the other hand, theoretically speaking, The identification of accident liability and the final civil compensation in the relevant cases are very controversial. It can be judged logically through the fair execution of procedure and the general viewpoint of domestic theory. Moreover, this kind of case has already caused the question about the morals and the law related question in the domestic, whether obeys the procedure or considers the reason, in the absence of evidence, how to embody the principle of good faith is worth discussing.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.1;D648;D920.5
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本文编号：2213630
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