侵害祭奠利益之侵权责任

Tort Liability for Infringing Upon Interests of Memorial

祭奠利益植根于中华传统文化,系重要人格法益,应纳入一般人格权的保护范围。对其保护立法阙如,祭奠习惯多为定纷止争的依据。在祭奠开始时,治丧人负有报丧义务,但逝者遗愿可为免责事由。在确定遗体等归属时,首应遵守逝者遗愿,依习惯第一顺位管理人为逝者配偶,其他同顺位近亲属采"多数决"确定管理人。侵害祭奠利益的精神损害赔偿数额经法官自由裁量确定,以慰抚为主,补助、处罚为辅;在各省指导数额久未更新的情形下,宜酌情通货膨胀等因素以更富弹性地发挥精神损害赔偿之诸项功能。

Interests of memorials derive from Confucian life propriety, and it should be protected by general personality right. Because interests of memorials are not defined clearly, it should be defined through categorization. When sacrifice begins, people who are responsible for the sacrifice should inform others, but this responsibility can be excluded by the will of the dead. When deciding which one the corpse or ashes of the dead belongs to, the will of the dead should be conformed firstly, and the spouse of the dead who is the foremost administrator can work with other relatives at the same rank to decide the proper admin- istrator via majority rule. The amount of spiritual damages for sacrifice interests infringement should be determined by the judge through the discretion, and comforting the victim is the main purpose along with subsidy as well as punishment. Because the guided amounts of different provinces are not updated, the inflation concept should be considered to wield the function of spiritual damages flexibly. The article 10 of civil law principle stipulates that custom is one of the resources of civil law. Herme- neutics should be considered when deciding whether the custom can be the civil law resource. Only those legitimate, reasonable customs that conforms to the time spirit and national policy can be considered as rules. When there is no general rule about whether a custom can be a rule, moral custom can be introduced into legal realm through the rules of public order and good custom, and the custom that is not related to morality through analogy and interpretation.