人身损害赔偿中护理费的适用条件、赔偿标准与请求权归属

On Conditions,Criteria for Nursing Fee Compensation and Its Right of Claim

护理费是对受害人因人身伤害需要护理而产生的损失之赔偿,所对应的损失有两种:一是聘请护工而支付的报酬,一是非护工(由受害人的家属担任)护理而产生的误工损失。护理费赔偿不应以医院批准或要求护理为条件;家属的误工损失作为纯粹经济损失也应当赔偿。我国司法解释存在着可完善之处,尤其是确定护理费赔偿标准应当区分护工护理和非护工护理,而非区分有收入的非护工护理和无收入的非护工护理。在非护工护理的情况下,护理人员当有赔偿请求权。

The nursing fee refers to the compensation for the losses incurred by nursing service to a victim who has got injury physically. The corresponding losses include the payment for employing nurse（s） and the reduced income due to missing working time of non-nurse （the victim＇s family member who took care of him）. Nursing fee compensation shall not be subject to hospital＇s approval or demand. As a genuine economic loss, the reduced income of victim＇s family member due to missing working time shall also be compensated. As to the relevant judicial interpretation in China, there is room for improvement. In particular, in the criteria for nursing fee compensation there should be distinction between nurse and non-nurse, rather than distinction between non-nurse with fixed salary and non-nurse without fixed salary. Where non-nurse is in charge of taking care of victim, he shall have the right to claim compensation.