社会视野下的死亡赔偿

社会视野下的死亡赔偿

Compensation for Death from Social Perspectives

    期刊名称：《法学研究》
    期刊年份：
    作者：巩固
    单位：
    中文关键词：死亡赔偿;损害填补;多元平衡
    英文关键词：compensation for death;filling up the damage;multiple balancing;society
    中文摘要：
    “同命不同价”源于目前占据学界主流的继承丧失说及相应制度安排；在对其批评基础上提出的生命损失说，虽有反思性，但仍不能解决根本问题。它们本质上都是损害填补思维的产物，把死亡视为个体利益的损失加以填补。从社会角度看，生命权被侵犯还具有重要的伦理意义。死亡赔偿实际上要综合发挥救济、弘扬、惩罚、预防等多种功能，结合社会现实，考虑社会效果，继承丧失说及其倡导的个殊化赔偿模式殊不可取，死亡赔偿应向相对定额发展。侵权责任法的理论基础仍是继承丧失说，该法第17条并未真正解决“同命不同价”，应通过对死亡赔偿金的扩大解释予以弥补。
    英文摘要：
    Compensation for death is a kind of civil compensation liability due to the illegal infringement on the right of life. According to our legislation, there is great disparity between the damages for similar cases of death, which gives rise to a wide range of social controversy and has become one of the difficult problems for the Tort Liability Law of PRC to solve.According to the theory of “loss of inheritance”, death compensation is the remedy to the close relatives and stakeholders of the deceased whose prospective property interest is damaged by the death. Such theory claims to estimate the loss and pay the compensation according to the earning capacity and life expectancy of the deceased. The existing provisions in China have taken a compromise of this theory and determine the damages mainly on the household register. This is the root of social blame for “similar lives but with different values”.In recognition of the shortcomings of the “loss of inheritance” theory, some scholars put forward the theory of “loss of life”, which claims that the death compensation is the compensation for the loss of “life interest” of the deceased. It is a reflective theory, but full of logical deficiency and hard to carry out, so cannot solve the fundamental problem. Essentially speaking, the theories of “loss of inheritance” and “loss of life” are both the product of traditional civil law thinking of filling up the damage, in other words, they regard the death as the loss of individual interests which need to be filled up. But from the social perspectives, in addition to fill up the dependents’ individual interests, compensation for death bears a variety of functions of relief, punishment, promotion, prevention and so on. The theory of “loss of inheritance”, which emphasizes on compensating for personal property loss of the dependent and advocates individualized compensation model, can not give full play of the multiple functions of death compensation, can not embody the respect for the value of life, and is contrary to the spirit of equality. From the ideal angle, and taken social realities into account, China’s death compensation system should develop in the direction of “relative fixed amount”, tilt to the weaker and play comprehensive functions of relief, promotion, prevention, punishment and so on.
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