中国七编制《民法典》中统一损害概念之证成

Unification Certification of Damages Under the Seven-Volume Civil Code of China

中国七编制《民法典》不设债法总则编,赔偿法散见于合同、侵权等分编,赔偿法的理解适用与体系建构更具挑战。损害研究应转向体系视角,借损害概念贯彻赔偿法基本理念与原则,整合损害赔偿体系。《民法典》第1182条、第1184条区分财产损害与损害计算,未采差额说,人身侵害之损害的确定应一致。人身伤亡是《民法典》第1002条、第1003条、第1004条保护的生命权、身体权、健康权之减损,构成损害。伤亡损害之赔偿需借助拟制,赔偿标准随社会与法律发展调整。精神损害赔偿与惩罚性赔偿定位不符,不应以惩罚为目的。合同为合作框架,可填充精神利益。可预见性与因果关系相当性观察视角不同,但均以事物发展的盖然性为判断基础。以增益人身权为标的之合同,精神损害为人身损害的通常结果,符合可预见性。以安宁、享受为目的之合同,给付为精神利益载体,于相对人具有确定性和公开性,可类推人格权。《民法典》第996条作为"违约"精神损害赔偿依据之疑点应以法律解释方法祛除,侵权责任编第二章在赔偿法意义上可得参照。惩罚性赔偿坚持客观损害和损害基数原则,以弥补"执法缺口",避免沦为单纯惩罚,与行政法、刑法重复。在消费欺诈情形下,价款通常是采用"交换说"且不考虑抵销时的损失。为减轻举证责任、便利消费者维权,法律将其统一推定为损失,作为惩罚性赔偿之基准。未来应增加实际损失基准,维护体系统一并避免限制消费者诉请缔约过失责任。上述"损害之统一"彰显损害与损害计算有别、与责任法"领域"不直接捆绑、与赔偿适度关联等理念。深刻理解、坚持这些理念方能使赔偿法"形散神聚",科学性与体系性兼顾。

Different from the civil codes of Germany and Japan, there is no general provisions of the debt law in the seven-volume Civil Code of China. The compensation rules are scattered in the contracts, torts and other parts. The understanding, application and systematic construction of damages law are challenging. Research on damages should shift its focus from assessment of the compensability of loss to the function of system. Through the unification certification of damages, principles of compensation law should be implemented and damages law should be integrated. The Articles 1182 and 1184 of the Civil Code distinguish damages from calculation of damages, and do not adopt the doctrine of difference. The determination of damages upon personal injury should be consistent. Compensation for moral damages should not be set for the purpose of punishment, as is inconsistent with the punitive compensation. Personal injury and death, which constitute damages, are the impairments of the rights and interests of life safety, physical integrity and physical and mental health protected by Article 1002, 1003 and 1004 of the Civil Code. Based on the priceless and equal nature of human beings, casualties are non-property damages, and compensation should be made according to abstract standards, and citizens should be equally protected. The contract can be fulfilled with spiritual interests. The Predictability and equivalency of causality can be observed from different perspectives, upon the probability of the development of things. For a contract with the purpose of peace and enjoyment, the performance of which can be viewed as a carrier of spiritual interests, with certainty and openness for the other party, and the personality right in which can be analogized. It is doubtful whether the Article 996 of the Civil Code could be the foundation of compensation for spiritual damages on "breach of contract". The second chapter of the tort liability part stipulates the compensation items from the perspective of damages law, which is not affected by the reason of liability, and it can also be applied. Punitive damages are divided into punitive damages for tort liability and for contract liability. It adheres to the principle of objective damages and damage base to make up the "law enforcement gap" and avoids being simple punishment, which is repeated with the administrative law and the criminal law. In the case of consumer fraud, the loss of liability for breach of contract is usually determined on the basis of "exchange theory" without considering offset. In order to reduce the burden of proof, promote the rapid settlement of disputes, and encourage consumers to protect their rights, price is presumed loss as the punitive compensation standard of contract liability. In the future, we should increase the level of actual loss, maintain the unity of the system, and avoid restricting the freedom of consumers to sue for contractual fault liability. The unity of the connotation, extension and function of damages makes the damage compensation law " scattered norms and unified theories ", scientific and systematic.