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| Status | 即將出版Forthcoming |
| 生命何价：澳门地区民法上死亡损害赔偿的理论与实务 (Quantum Pretium Mortis? Theory and Practice of Compensation for Death in Macau Civil Law) | |
NG KEI KEI
| |
| 2024-12 | |
| Source Publication | 私法研究
 |
| Abstract | 本文旨在结合学说见解与法院判决，系统检视澳门地区民法上“生命丧失损害”或曰“死亡损害”赔偿制度的各个方面：其一，在赔偿可能性方面，虽民法典无明文许可，但从赔偿理念、法律解释以至立法政策的角度观之，皆无不予赔偿之理。其二，在实务上赔偿金额方面，从特区成立以来金额一直稳步上扬，现时法院裁定的赔偿已可达150万元。其三，在赔偿金额的衡量因素方面，通说一向认为“生命丧失损害”赔偿金额因案而异，故非就生命有划一定价。惟素有争议的是，应考量何种个案情节。为贯彻“生命不分高低”理念，宜采“受害人相关情节部分保留说”，只考量死者的年龄与健康状况，而不考量其他情节诸如死者的性格、生产力、职业风险与遗属丧亲痛苦。其四，在赔偿请求权的归属方面：就归属主体而言，请求权仅属于法定遗属，且应鉴于目的因素而扩张解释法条所谓“子女”，以涵盖受害人死亡时已被怀上的子女；就归属方式而言，宜鉴于历史因素、文义因素与体系因素，采“原始取得说”，弃“继承取得说”，从而排除继承法制度诸如遗产接受、遗产负担、遗嘱处分等规定的适用；就归属次序而言，法律采“接续赋权原则”，按顺序向不同组别遗属赋予请求权，且在每一个组别中尚再有顺序之分；就归属改定而言，主流见解认为顺位规定具强制性，故既不容许法定遗属以外人士请求赔偿，亦不容许改动法定顺位；就归属份额而言，司法见解认为，赔偿金原则上由法定遗属平分，除非个别遗属与死者欠缺感情联系或促成死亡事故。 |
| Other Abstract | This paper aims to systematically examine the compensation for the damage “loss of life”, i.e., the compensation for death, in Macau civil law, combining legal doctrines and jurisprudence, in the following aspects: First, in terms of the possibility of compensation, although it is not expressly permitted in the Civil Code, there is no reason not to award compensation, considering the ideal of compensation, various elements of legal interpretation, and the legislative policy. Secondly, in terms of the amount of compensation in practice, it has been rising steadily since the establishment of the Macau SAR, and the compensation awarded by the court has now reached 1.5 million patacas. Thirdly, in terms of the factors to consider when measuring the amount of compensation for death, according to the communis opinio, the amount varies from case to case, so there is no “uniform price” for life. However, it has been controversial which specific circumstances should be considered. In order to implement the conception that "every life is equal", it is appropriate to consider certain victim-related circumstances, i.e., the age and health status of the deceased, instead of his/her character, productivity, occupational risks and the bereavement of his/her family. Fourth, in terms of the attribution of the right to compensation: As far as the subject is concerned, the right to compensation only belongs to the family members stated by the law. In addition, considering the ratio legis, the sense of "children" mentioned by law should be expanded, in order to cover the children already conceived at the time of the victim's death; as far as the mode of attribution is concerned, considering the historical factor, the grammatical factor as well as the systematic factor, it is advisable to adopt the "original acquisition theory" instead of the "derivative acquisition theory", thereby excluding provisions in inheritance law such as rules regulating acceptance of inheritance, burden of inheritance and testamentary disposition, etc.; as far as the order of attribution is concerned, the law establishes the "principle of successive empowerment", granting claim rights to different groups of family member in order, and there is still an order in each group; as far as the possibility of modifying the attribution is concerned, according to the prevalent view, the order established by law is mandatory, so no one other than the family members mentioned by law is allowed to claim compensation, nor is the order allowed to be changed; as far as the shares of the claim are concerned, jurisprudence held that in principle the compensation should be divided equally among the family members mentioned by law, unless any of them lacks of emotional connection with the deceased, or has contributed to the victim’s death. |
| Keyword | 生命权 死亡损害赔偿 非财产性损害赔偿 精神损害赔偿 澳门民法 Right To Life Death Compensation Compensation For Non-pecuniary Damages Compensation For Moral Damages Macau Civil Law |
| Indexed By | CSSCI |
| Language | 中文Chinese |
| Funding Project | Research and Publication Project on Jurisprudence / Macau Positive law / Legal History |
| Document Type | Journal article |
| Collection | DEPARTMENT OF MACAO LEGAL STUDIES |
| Affiliation | 1.Department of Macao Legal Studies, Faculty of Law, University of Macau 2.The Institute of Advanced Studies in Humanities and Social Sciences, University of Macau |
| Recommended Citation GB/T 7714 | NG KEI KEI. 生命何价：澳门地区民法上死亡损害赔偿的理论与实务 (Quantum Pretium Mortis? Theory and Practice of Compensation for Death in Macau Civil Law)[J]. 私法研究, 2024. |
| APA | NG KEI KEI.(2024). 生命何价：澳门地区民法上死亡损害赔偿的理论与实务 (Quantum Pretium Mortis? Theory and Practice of Compensation for Death in Macau Civil Law). 私法研究. |
| MLA | NG KEI KEI."生命何价：澳门地区民法上死亡损害赔偿的理论与实务 (Quantum Pretium Mortis? Theory and Practice of Compensation for Death in Macau Civil Law)".私法研究 (2024). |
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