侵害财产权的精神损害赔偿制度理论基础之修正

Amendment to theoretical basis of compensation for mental damages of infringement of property rights

侵权责任的理论基础应该以人身权、财产权、混合型权利三种权利类型作为支撑;当前的司法实践确立纪念物品的毁损可以获得精神损害赔偿,是在人格性财产权的涉他性客体和非涉他性客体这两类上探索成果的一个综合概括,而不是在某一类上的单独探索;学者在研究精神损害赔偿的实践时,应该将这两类分开,这样才能将研究推向全面、深入。

Theoretical basis of liability for tort should be based on three type of rights, such as personal rights and property rights and mixed rights. The present justice has established a practice that compensation for mental damages for breaking memorials could be obtained, and this practice is a comprehensive summary of both related object and unrelated object which are included in personal property rights, but is not a single analysis on one of them. Therefore scholars ought to get them apart in studying practice of compensation for mental damages so as to promote the research more and more comprehensively and thoroughly.