特殊体质受害人损害赔偿问题研究
发布时间：2019-03-14 20:24
【摘要】：特殊体质受害人侵权案件,英美法系也称“蛋壳脑袋规则”案件,这一类型案件因受害人存在特殊体质,导致所产生的损害超出一般损害的范围,进而体现出其特殊性和复杂性。比较法上此类案件的赔偿原则相对来说比较一致,即侵权人应当对受害人的损害承担全部赔偿责任,不得以受害人自身存在特殊体质作为抗辩事由,进而减轻赔偿责任。而我国在司法实践中,对待此类侵权案件的审理思路并不统一,由于对此类案件不存在对应的法律规范,导致司法实践中没有明确的法律法规作为指引,同一类案件不同法院判决上不尽一致,甚至同一法院判决结果也不相同。特殊体质受害人赔偿案件中侵权责任如何承担,因受当事人的主观过错程度大小、原因力强弱、可预见性规则等影响,理论界在这类案件责任承担方面存在分歧。鉴于以上事实,对特殊体质受害人侵权案件中,侵权人对特殊体质受害人的损害是否应当承担责任以及在什么责任范围内承担责任,具有非常重要的研究意义。在我国司法实践中,关于在审理特殊体质受害人侵权损害赔偿案件的做法,可分为以下几种观点:第一种就是受害人的特殊体质对于损害的扩大并不属于侵权人减轻责任的法定理由,侵权人应就损害承担全部赔偿责任;第二种就是原因力理论的适用,受害人的特殊体质对于损害的扩大具有一定的原因力,侵权人仅在自身行为原因力造成的损害特殊体质受害人侵权案件范围承担赔偿责任;第三种就是侵权人造成特殊体质损害的,主观上没有过错或者过失,行为人的行为和损害后果之间的距离过于遥远,侵权人不承担赔偿责任。我国司法实践中此类案件大多数适用原因力理论进行责任分摊,即第二种理论,呈现柔性的判决结果,走的是中庸道路。在理论界主要借鉴国外“蛋壳脑袋规则”的观点进行研究和探讨,“蛋壳脑袋规则”能否移植国内进行适用,观点不尽一致,毕竟国情不同,适用环境就有所不同。特殊体质受害人的损害赔偿因为特殊体质介入使此类案件的因果关系更加复杂,加之侵权案件类型多样化,侵权人主观过错等因素,一刀切的做法不能公平合理的解决赔偿问题。“蛋壳脑袋规则”和“原因力规则”在适用上都存在一定的局限性,全有或者全无的方式都过于僵化,不能完全的解决特殊体质受害人侵权赔偿问题。本文根据侵权人的行为与受害人的损害结合程度,将此类案件划分为两类:一是特殊体质损害的直接结合,侵权人的侵权行为直接作用于特殊体质受害人的特殊部位进而造成的损害;二是特殊体质损害的间接结合,侵权人的侵权行为引起特殊体质受害人原有疾病的诱发,体现为由第一性的损害导致的伴生性损害。在此分类的基础上,再综合考虑侵权人的主观过错形态、损害预防的效率和损害可预见性等相关因素,进行分析和价值判断,并对此进行类型化分析确立赔偿原则。
[Abstract]:In the case of the tort of the victims of the special constitution, the common law system also called the "Eggshell head rule" case. This type of case is due to the special constitution of the victim, which causes the damage to go beyond the scope of the general damage, and further reflects its particularity and complexity. The principle of compensation for such cases in the comparative law is relatively consistent, that is, the infringer should bear all the liability for the damage to the victim, and the victim's own special body constitution should not be used as the defense cause, and the liability of the compensation should be reduced. However, in the practice of the administration of justice, the idea of the handling of such cases of torts is not uniform, because there is no corresponding legal norm for such cases, which leads to the lack of clear laws and regulations in the judicial practice as the guide, which is not consistent with the judgment of different courts in a class of cases. Even the same court's decision is not the same. In that case of the compensation of the victim of the special constitution, how to bear the tort liability, because of the influence of the subjective fault degree of the party, the reason force, the predictability rule, and so on, the theory circle has a difference in the responsibility of such cases. In view of the above facts, it is very important to study whether the infringer's damage to the victim of the special physical constitution should be held liable and the responsibility within the scope of the responsibility. In the practice of judicial practice in our country, the article can be divided into the following points: the first is that the special constitution of the victim is not the legal reason for the extension of the damage and the liability of the infringer. The second is the application of the theory of the cause force, and the special constitution of the victim has a certain cause for the expansion of the damage. The third is that the distance between the act of the perpetrator and the consequences of the damage is too remote, The infringer shall not be liable for compensation. In our country's judicial practice, most of the case-force theory of this kind of case is the duty-sharing, that is, the second theory, the flexible judgment result is presented, and it is the medium-way road. In the field of theory, the author studies and discusses the viewpoint of foreign "Eggshell head rule", whether the "Eggshell head rule" can be transplanted to the country is not consistent, and the application environment is different after all, after all, the situation is different and the application environment is different. In the case of special physical constitution, the cause and effect of such cases are more complicated, and the type of tort case is diversified, the infringer's subjective fault and other factors, one-size-fits-all approach is not reasonable and reasonable to solve the compensation problem. The "Eggshell head rule" and the "reason force rule" have certain limitations in the application, and the whole or all-round way is too rigid to completely solve the problem of the compensation of the victims of the special physical constitution. In this paper, according to the degree of combination of the behavior of the infringer and the victim's damage, this kind of case is divided into two categories: one is the direct combination of special physical and physical damage, the infringement of the infringer directly acts on the special part of the special physical victim, and the damage is caused; The second is the indirect combination of the special physical and physical damage, and the infringement of the infringer causes the cause of the original disease of the victim of the special physical constitution, which is embodied as the accompanying damage caused by the first damage. On the basis of this classification, the subjective fault form of the infringer, the efficiency of the prevention and the predictability of the damage are comprehensively considered, and the analysis and the value judgment are carried out, and the principle of compensation is established for the typed analysis.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
本文编号：2440340
[Abstract]:In the case of the tort of the victims of the special constitution, the common law system also called the "Eggshell head rule" case. This type of case is due to the special constitution of the victim, which causes the damage to go beyond the scope of the general damage, and further reflects its particularity and complexity. The principle of compensation for such cases in the comparative law is relatively consistent, that is, the infringer should bear all the liability for the damage to the victim, and the victim's own special body constitution should not be used as the defense cause, and the liability of the compensation should be reduced. However, in the practice of the administration of justice, the idea of the handling of such cases of torts is not uniform, because there is no corresponding legal norm for such cases, which leads to the lack of clear laws and regulations in the judicial practice as the guide, which is not consistent with the judgment of different courts in a class of cases. Even the same court's decision is not the same. In that case of the compensation of the victim of the special constitution, how to bear the tort liability, because of the influence of the subjective fault degree of the party, the reason force, the predictability rule, and so on, the theory circle has a difference in the responsibility of such cases. In view of the above facts, it is very important to study whether the infringer's damage to the victim of the special physical constitution should be held liable and the responsibility within the scope of the responsibility. In the practice of judicial practice in our country, the article can be divided into the following points: the first is that the special constitution of the victim is not the legal reason for the extension of the damage and the liability of the infringer. The second is the application of the theory of the cause force, and the special constitution of the victim has a certain cause for the expansion of the damage. The third is that the distance between the act of the perpetrator and the consequences of the damage is too remote, The infringer shall not be liable for compensation. In our country's judicial practice, most of the case-force theory of this kind of case is the duty-sharing, that is, the second theory, the flexible judgment result is presented, and it is the medium-way road. In the field of theory, the author studies and discusses the viewpoint of foreign "Eggshell head rule", whether the "Eggshell head rule" can be transplanted to the country is not consistent, and the application environment is different after all, after all, the situation is different and the application environment is different. In the case of special physical constitution, the cause and effect of such cases are more complicated, and the type of tort case is diversified, the infringer's subjective fault and other factors, one-size-fits-all approach is not reasonable and reasonable to solve the compensation problem. The "Eggshell head rule" and the "reason force rule" have certain limitations in the application, and the whole or all-round way is too rigid to completely solve the problem of the compensation of the victims of the special physical constitution. In this paper, according to the degree of combination of the behavior of the infringer and the victim's damage, this kind of case is divided into two categories: one is the direct combination of special physical and physical damage, the infringement of the infringer directly acts on the special part of the special physical victim, and the damage is caused; The second is the indirect combination of the special physical and physical damage, and the infringement of the infringer causes the cause of the original disease of the victim of the special physical constitution, which is embodied as the accompanying damage caused by the first damage. On the basis of this classification, the subjective fault form of the infringer, the efficiency of the prevention and the predictability of the damage are comprehensively considered, and the analysis and the value judgment are carried out, and the principle of compensation is established for the typed analysis.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
【参考文献】
相关硕士学位论文 前2条
1 尹飞燕;特殊体质受害人的损害赔偿问题研究[D];沈阳师范大学;2016年
2 程艳华;论特殊体质受害人人身损害之赔偿标准[D];中国政法大学;2015年
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