侵害生命权之丧葬费赔偿研究

A Study on Compensation for Funeral Expenses: from Perspective of Violation of Right to Life

丧葬费是人身损害赔偿的法定赔偿项目,是指为办理死者丧事而支出的费用,它是因侵害生命权而产生的一种特殊财产损害。现行丧葬费赔偿制度存在规范冲突、体系混乱、逻辑不自洽等缺陷,导致死者最后的"尊严"得不到应有的维护,其根源在于目前的赔偿实际损失理论和提前支付丧葬费利息理论存在内在的缺陷。丧葬费赔偿的请求权基础具有阶段性特征,应以《侵权责任法》第18条第2款作为其请求权基础,该条款同时明确了其请求权主体应为实际支付丧葬费者。实务中,《关于审理人身损害赔偿案件适用法律若干问题的解释》生效之前的丧葬费赔偿标准存在"定额主义"和"个性主义"两种赔偿模式,"个性主义"下的赔偿标准以实际支出为限。该司法解释生效之后,丧葬费赔偿标准一律采"定额主义"赔偿模式,但这不仅违背填补损害原则,也是对生命权的一种漠视。鉴于司法实践惯性和社会实效的考虑,单纯的"定额主义"赔偿模式应得到矫正,未来的立法应向"相对定额主义"赔偿模式发展。

Funeral expenses are defined as a statutory item of personal injury compensation, which refers to expenses for the funeral of the deceased. It is a special kind of property damage due to violation of right to life. The present system of compensation for funeral expenses has some defects, such as conflicting rules, confused system and inconsistent logics, thus leading to insufficient protection of the final ＂dignity＂ of the deceased. The very root cause rests on the in- herent imperfection of theories of ＂compensation for actual loss＂ and ＂prepayment for interest of funeral expenses＂. The right of claim relating to compensation for funeral expenses is characterized by phase, which should be based on Paragraph 2, Article 18 of Tort Law. Meanwhile, the article has also stipulated that the claimant shall be the actual payer of funeral expenses. In practice, before the Judicial Interpretation （2003） No. 20 came into force, two compensation patterns were relied upon in relation to compensation standard of funeral expenses： one based on fixed-a- mount and the other, based on individual cases. For the latter pattern, the standard is limited to actual cost. However, since the Judicial Interpretation （2003） No. 20 entered into force, only pattern based on fixed-amount has remained to be relied upon. This not only violates the principle of making-up for damage, but also constitutes indifference towards right to life. In view of the way of going by convention in judicial practice and actual social effects, the compensation pattern based on fixed-amount should be rectified and future legislation should be guided in the develop- ment of compensation pattern based on relative fixed amount.