宠物死亡精神损害赔偿之研判
发布时间：2018-12-09 08:52
【摘要】：在我国,发生宠物被第三人伤害致死的事件并不少见,当宠物主人把第三人告上法庭要求获得精神损害赔偿时,法院往往不会支持,一是因为我国还没有专门的法律法规来规定此类诉讼,二是宠物的价值确实难以用金钱来衡量。宠物与主人之间存在着深厚且重要的感情,类似于家庭成员之间的爱。但是法律一直把所有的动物(包括宠物)当作一种财产,这种分类使得一些涉及侵权和监护的案件引发许多争议。法律应当根据人类对待宠物的珍爱程度作出调整,在特定的情况下,宠物不应当被仅仅视为财产,而是具有人格象征意义的特殊物。当第三人故意或者重大过失致使宠物死亡时,宠物主人承受了巨大的精神痛苦,而宠物的市场价值很有限,只判决赔偿宠物的市场价值远远不能弥补宠物主人的损失。本文通过对西方国家尤其是美国关于宠物死亡的司法判例的研究,认为动物尤其是宠物不是个人财产,而是寄托了人的感情、具有人格利益的特殊存在。当宠物因侵权行为致死时,法院除应判决赔偿宠物主人其宠物的市场价值外,还应当支持原告精神损害赔偿的诉讼请求。为了完成本篇论文所探讨的主题,笔者将论文分为六个部分进行论述。第一部分通过法院对在我国发生的两个宠物侵权案件的不同判决,引出本文所要论述的问题。第二部分对我国关于精神损害赔偿有关的法律法规、司法解释进行了梳理,可以看出在精神损害赔偿这一方面,我国的法律制度在不断完善和进步,虽然没有明确规定宠物在受到伤害时宠物主人有获得精神损害赔偿的权利,但是在司法解释中,规定了具有人格象征意义的特定纪念物品,因侵权行为而永久性灭失或者毁损可以提起精神损害赔偿赔偿之诉,无疑是一大突破。第三部分则论述了国外如何对待宠物死亡精神损害赔偿的情况。随着人类文明的进步,宠物作为一个有着自己意识和感情的物种,在社会上的地位有了很大的提高,它们对于人类的重要性愈发凸显,这是宠物区别于其它物如植物的所在。尽管在西方,宠物受到第三人侵害致死、主人能否得到赔偿还没有形成统一的观点,但是已经有越来越多的法院作出了支持宠物主人提出精神损害赔偿的请求。美国的一些州如田纳西州甚至通过立法的形式允许宠物主人因为宠物受伤或死亡获得精神损害赔偿。第四部分论述了主人因为宠物死亡可以获得精神损害赔偿的理由。笔者认为,宠物应被视为具有人格象征意义的特殊物,宠物主人在失去它们后会承受巨大的痛苦,甚至可能会比失去自己的亲人还要痛苦,此外,宠物也符合我国法律规定的具有人格象征意义的特定纪念物的条件。在文章的第五和第六部分,笔者论述了宠物主人因为宠物死亡可以获得精神损害赔偿的要件以及决定赔偿数额的因素。
[Abstract]:In our country, it is not uncommon for a pet to be injured to death by a third person. When the pet owner takes the third person to court for moral damages, the court often does not support it. One is that there are no specific laws and regulations governing this kind of litigation, and the other is that the value of pets is really difficult to measure in terms of money. There are deep and important feelings between pets and their owners, similar to love among family members. But the law has been treating all animals (including pets) as a property, a classification that has led to a number of controversial cases involving infringement and guardianship. The law should be adjusted according to the degree to which human beings treat pets. In certain circumstances, pets should not be regarded as merely property, but as special objects of personality symbolism. When the third party intentionally or negligently causes the death of the pet, the pet owner suffers great mental pain, and the market value of the pet is very limited, and the market value of the compensation for the pet is far from being able to compensate the loss of the pet owner. Based on the study of the judicial precedents of pet death in western countries, especially in the United States, this paper holds that animals, especially pets, are not personal property, but are based on human feelings and have the special existence of personal interests. When the pet died as a result of tort, the court should not only award compensation to the pet owner for the market value of his pet, but also support the plaintiff's claim for moral damages. In order to complete the theme of this paper, the paper is divided into six parts to discuss. The first part leads to the problems discussed in this paper through the different judgments of two pet infringement cases in our country. In the second part, the author sorts out the laws and regulations related to the compensation for mental damage, and the judicial interpretation shows that the legal system of our country is constantly improving and improving in the aspect of compensation for mental damage. Although there is no explicit provision for the right of the pet owner to compensation for moral damage in the event of injury, in the judicial interpretation there is a specific memorial with symbolic personality, It is no doubt a breakthrough that permanent loss or damage caused by tort can be sued for moral damages. The third part discusses how to deal with the pet death compensation. With the progress of human civilization, pets, as a species with their own consciousness and feelings, have greatly improved their status in society, and their importance to human beings has become increasingly prominent, which is where pets are distinguished from other things such as plants. Although there is no unified view on whether a pet can be compensated by a third person in the West, more and more courts have made a request to support the owner for moral damages. Some states, such as Tennessee, have even passed legislation allowing pet owners to receive moral damages for injury or death. The fourth part discusses the reasons why owners can get compensation for moral damage due to the death of their pets. In my opinion, pets should be regarded as special objects with symbolic personality. Pet owners will suffer a great deal after losing them, and perhaps even more painful than losing their loved ones. Pets also meet the requirements of specific monuments with symbolic personality as prescribed by our law. In the fifth and sixth parts of the article, the author discusses the elements of compensation for mental damage and the factors that determine the amount of compensation for the death of pets.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2369117
[Abstract]:In our country, it is not uncommon for a pet to be injured to death by a third person. When the pet owner takes the third person to court for moral damages, the court often does not support it. One is that there are no specific laws and regulations governing this kind of litigation, and the other is that the value of pets is really difficult to measure in terms of money. There are deep and important feelings between pets and their owners, similar to love among family members. But the law has been treating all animals (including pets) as a property, a classification that has led to a number of controversial cases involving infringement and guardianship. The law should be adjusted according to the degree to which human beings treat pets. In certain circumstances, pets should not be regarded as merely property, but as special objects of personality symbolism. When the third party intentionally or negligently causes the death of the pet, the pet owner suffers great mental pain, and the market value of the pet is very limited, and the market value of the compensation for the pet is far from being able to compensate the loss of the pet owner. Based on the study of the judicial precedents of pet death in western countries, especially in the United States, this paper holds that animals, especially pets, are not personal property, but are based on human feelings and have the special existence of personal interests. When the pet died as a result of tort, the court should not only award compensation to the pet owner for the market value of his pet, but also support the plaintiff's claim for moral damages. In order to complete the theme of this paper, the paper is divided into six parts to discuss. The first part leads to the problems discussed in this paper through the different judgments of two pet infringement cases in our country. In the second part, the author sorts out the laws and regulations related to the compensation for mental damage, and the judicial interpretation shows that the legal system of our country is constantly improving and improving in the aspect of compensation for mental damage. Although there is no explicit provision for the right of the pet owner to compensation for moral damage in the event of injury, in the judicial interpretation there is a specific memorial with symbolic personality, It is no doubt a breakthrough that permanent loss or damage caused by tort can be sued for moral damages. The third part discusses how to deal with the pet death compensation. With the progress of human civilization, pets, as a species with their own consciousness and feelings, have greatly improved their status in society, and their importance to human beings has become increasingly prominent, which is where pets are distinguished from other things such as plants. Although there is no unified view on whether a pet can be compensated by a third person in the West, more and more courts have made a request to support the owner for moral damages. Some states, such as Tennessee, have even passed legislation allowing pet owners to receive moral damages for injury or death. The fourth part discusses the reasons why owners can get compensation for moral damage due to the death of their pets. In my opinion, pets should be regarded as special objects with symbolic personality. Pet owners will suffer a great deal after losing them, and perhaps even more painful than losing their loved ones. Pets also meet the requirements of specific monuments with symbolic personality as prescribed by our law. In the fifth and sixth parts of the article, the author discusses the elements of compensation for mental damage and the factors that determine the amount of compensation for the death of pets.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
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