精神损害赔偿归责原则研究
发布时间：2018-10-08 18:03
【摘要】：精神损害赔偿的归责原则在我国法律中没有明确的规定,学说上也有多种争论。精神损害赔偿案件纷纭复杂,大量的案件是很难援引现行的具体规定来处理的,借助归责原则,司法人员就可以正确处理精神损害赔偿案件,制裁各种精神损害侵权行为,实行对人身权的充分保护。在我国现阶段精神损害赔偿法律尚不完善的情况下,充分发挥归责原则的这种功能,尤为重要。基于此,本文在此对精神损害赔偿的归责原则作了一次尝试性的研究,试图将纷繁杂乱精神损害赔偿归责原则整合为一个具有逻辑联系的体系。希望通过本文的论述,能够为进一步完善精神损害赔偿的归责原则在司法实践中的应用提供理论依据,使其更加符合我国社会主义市场经济的实际,同时也更加顺应世界民商法发展的潮流。 目前,我国理论界关于精神损害赔偿的归责原则有两种观点占主导地位,一是认为精神损害赔偿应适用过错责任原则,二是认为精神损害赔偿应适用过错责任原则和无过错责任原则。对此,本文认为由于精神损害赔偿可适用范围的广泛性和民事不法行为的多样性,在精神损害赔偿领域似不应规定一个统一的归责原则。在侵害精神性人格权、身份权的精神损害赔偿中,可以适用过错责任原则归责。在侵害物质性人格权、财产权的精神损害赔偿中,过错责任原则、无过错责任原则、公平责任原则都有其适用的余地。 全文分为三大部分:引言、正文和结语。 在本文的引言中,主要介绍了本文选题的背景和目的。 本文正文分为四部分。 第一部分介绍了精神损害赔偿的主要概念、客体、理论依据,在此基础上提出了精神损害赔偿归责原则的适用问题。 第二部分主要论述了过错责任原则的历史沿革及精神损害赔偿制度的形成和发展过程,过错责任原则作为精神损害赔偿基本归责则原则的理论依据,并从责任构成、适用范围、举证责任等方面探讨了精神损害赔偿过错责任原则的适用。最后论述了精神损害赔偿过错推定原则是过错责任原则运用的一种特殊方式,介绍了应当适用过错推定原则来确定精神损害赔偿责任的几种特殊侵权行为,讨论了精神损害赔偿适用过错推定责任原则的意义及局限。适用过错推定责任原则来确定精神损害赔偿责任的几种特殊侵权行为主要包括:地下工作物致人物质性人格权损害,建筑物及其他设施以及建筑物上的
[Abstract]:The principle of imputation of mental damage compensation is not clearly stipulated in Chinese law, and there are many arguments in theory. Mental damage compensation cases are complicated, a large number of cases are difficult to invoke the existing specific provisions to deal with, with the help of the principle of imputation, judicial personnel can correctly deal with mental damage compensation cases, sanction all kinds of violations of mental damage. Full protection of personal rights shall be carried out. It is very important to give full play to the function of imputation principle under the condition that the law of mental damage compensation is not perfect at present in our country. Based on this, this paper makes a tentative study on the principle of imputation of compensation for mental damage, and attempts to integrate the principle of imputation of compensation for mental damage into a system with logical connection. It is hoped that this paper can provide a theoretical basis for the further improvement of the application of the principle of imputation of mental damage compensation in judicial practice, and make it more in line with the reality of our socialist market economy. At the same time, it also conforms to the trend of the development of the world civil and commercial law. At present, there are two dominant views on the principle of imputation of mental damage compensation in our country. One is that the principle of fault liability should be applied to the compensation for mental damage. Secondly, the principle of fault liability and non-fault liability should be applied to mental damage compensation. In view of this, this paper holds that due to the wide scope of application of mental damage compensation and the diversity of civil illegal acts, it seems that a unified imputation principle should not be stipulated in the field of mental damage compensation. The principle of liability for fault can be applied in the compensation for spiritual damage to the right of spiritual personality and identity. The principle of fault liability, the principle of no-fault liability and the principle of fair liability have their own scope of application in the compensation for spiritual damage caused by infringement of material personality rights and property rights. The full text is divided into three parts: introduction, text and conclusion. In the introduction of this paper, it mainly introduces the background and purpose of this paper. The text of this paper is divided into four parts. The first part introduces the main concept, object and theoretical basis of mental damage compensation, and puts forward the application of the principle of imputation of mental damage compensation. The second part mainly discusses the historical evolution of the principle of fault liability and the formation and development of the system of compensation for mental damage. The principle of fault liability is the theoretical basis of the basic principle of imputation of compensation for mental damage, and it is based on the constitution of liability and the scope of application. The application of the principle of fault liability for mental damage compensation is discussed in the aspects of burden of proof. Finally, this paper discusses that the principle of presumption of fault in compensation for mental damage is a special way of applying the principle of fault liability, and introduces several special tort acts in which the principle of presumption of fault should be applied to determine the liability for compensation for mental damage. This paper discusses the significance and limitation of applying the principle of presumption of fault liability to mental damage compensation. Several special tort acts which apply the principle of presumption of fault liability to determine the liability for moral damage mainly include: damage to the material personality rights caused by underground work, buildings and other facilities and buildings
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D913
本文编号：2257745
[Abstract]:The principle of imputation of mental damage compensation is not clearly stipulated in Chinese law, and there are many arguments in theory. Mental damage compensation cases are complicated, a large number of cases are difficult to invoke the existing specific provisions to deal with, with the help of the principle of imputation, judicial personnel can correctly deal with mental damage compensation cases, sanction all kinds of violations of mental damage. Full protection of personal rights shall be carried out. It is very important to give full play to the function of imputation principle under the condition that the law of mental damage compensation is not perfect at present in our country. Based on this, this paper makes a tentative study on the principle of imputation of compensation for mental damage, and attempts to integrate the principle of imputation of compensation for mental damage into a system with logical connection. It is hoped that this paper can provide a theoretical basis for the further improvement of the application of the principle of imputation of mental damage compensation in judicial practice, and make it more in line with the reality of our socialist market economy. At the same time, it also conforms to the trend of the development of the world civil and commercial law. At present, there are two dominant views on the principle of imputation of mental damage compensation in our country. One is that the principle of fault liability should be applied to the compensation for mental damage. Secondly, the principle of fault liability and non-fault liability should be applied to mental damage compensation. In view of this, this paper holds that due to the wide scope of application of mental damage compensation and the diversity of civil illegal acts, it seems that a unified imputation principle should not be stipulated in the field of mental damage compensation. The principle of liability for fault can be applied in the compensation for spiritual damage to the right of spiritual personality and identity. The principle of fault liability, the principle of no-fault liability and the principle of fair liability have their own scope of application in the compensation for spiritual damage caused by infringement of material personality rights and property rights. The full text is divided into three parts: introduction, text and conclusion. In the introduction of this paper, it mainly introduces the background and purpose of this paper. The text of this paper is divided into four parts. The first part introduces the main concept, object and theoretical basis of mental damage compensation, and puts forward the application of the principle of imputation of mental damage compensation. The second part mainly discusses the historical evolution of the principle of fault liability and the formation and development of the system of compensation for mental damage. The principle of fault liability is the theoretical basis of the basic principle of imputation of compensation for mental damage, and it is based on the constitution of liability and the scope of application. The application of the principle of fault liability for mental damage compensation is discussed in the aspects of burden of proof. Finally, this paper discusses that the principle of presumption of fault in compensation for mental damage is a special way of applying the principle of fault liability, and introduces several special tort acts in which the principle of presumption of fault should be applied to determine the liability for compensation for mental damage. This paper discusses the significance and limitation of applying the principle of presumption of fault liability to mental damage compensation. Several special tort acts which apply the principle of presumption of fault liability to determine the liability for moral damage mainly include: damage to the material personality rights caused by underground work, buildings and other facilities and buildings
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D913
【引证文献】
相关硕士学位论文 前1条
1 庄群;铁路交通事故损害赔偿研究[D];北京交通大学;2007年
，本文编号：2257745
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