Research On The Civil Liability Of The Corpse Infringements

With the development of medical science, the advanced technical of organ transplants is rising .Make the quiet and peaceful dead reluctantly and multifariously enter the visual field of the law. Because the civil case law in our country have no explicit concrete provision to the protection of corpse. Although the theories field has many different standpoints, various theory is all each to keep one side and have no good way to solve the total problem, so It cause the related law lack the stability, having to practice in the front of the concrete law which tired from rushing around on duty .Although after the concerning some problems of the assurance case infringement spirit indemnity responsibility of hermeneutic released in the 8th,March 2001,processing civil case concerning"the dead right", have already have the example can follow. But the occurrence of" the case of eyeball of Peking throws to lose " get close to the blank of the legal theory and norm directly and quickly. Uncovered the new literary piece for the relevant issue. This probably fulfilled the historic sentence : comparing the fascinating life , the theories is pale forever. The writer want to study towards violating the related problem of the corpse by explaining the eyeball lose case. The writer puts forward that the corpse in the text which is similar to person's body is not a thing, the dead should have the ability of homologous .But the theories of the protection corpse lie in the dead which possess the complete power etc. and discuss the general responsibility of some behaviour for example: studied the composing important item of the corpse infringement behavior, violate the civil case responsibility method of the corpse and violate the corpse responsibility to refute the origin of matter and victimize the person's spirit indemnity etc. The full text is constitute by five parts on the structure. The first part for preface make the general discussion about the case of eyeball lose of Peking , and take this as the foundation to cause to study and discuss to the full text. Part 2 is textual chapter 1, using more method of research, through the classification toward the existing theory research, put forward: if the death is a part of life the corpse is a part of the person, the dead still has the personality dignity, violating to the corpse, not only violating the complete power but also violating the general personality power of personality dignity that infringed upon the dead. The third part is textual chapter 2, the composing item of the corpse infringement responsibility. The writer clarifies to violate the concrete contents of the composing important item of the corpse behavior respectively, basic theories and these theories that discussed to violate the behavior, injure, add the fault of harm the person and violate the corpse behavior and injure the cause and effect relation between result the problem that apply in a specific way in judicatory practice. Four-part is textual chapter 3, inquired to ease or dismiss the infringement which is a very important problem of origin of matter. in violating the corpse case, accused a square can cite the fact that the conduct and actions refutes the origin of matter mainly include:1.The legality behavior of making use of the corpse;2.avoid the insurance urgently;3.Force majeure; In concrete case, if the accused can prove the existence above-mentioned, he can ease or dismiss the civil case responsibility that the oneself may undertake. At this part, this text emphasizes to discuss the organ to transplant to be used as a kind of some law problem that refutes the origin of matter .The writer thinks that the brain death be a kind of predict outcome towards die which can't carry on it to lawmaking. Even the person of thebrain death will certainly die, also can't do like this ,a person who wants to die considers as a died person to carry on the organ transplantation, and only to return the flexible organ because of his body. This kind of behavior is the serious damage to the personality dignity, what it injure is not some personal dignity but the whole personal dignity, therefore, is a kind of behavior to break the law .If sufferer voluntarily to give his organ ,we should also give the same treatment with the live , carrying on living the body transplantation. The fifth part is textual chapter 4, the civil case responsibility form of the research corpse. The principle that the guilty law mutually adapt in the penal code .In the civil case responsibility method undertake infringement, have opposite the property and the responsibility methods of the infringements equally at the request .Violating the infringement behavior of the property right, promise the infringement responsibility of a load of property generally, if making up for loss, return to the property; Violate the infringement behavior of the personal rights, promise the civil case responsibility of a load of Human body property generally, if the cancellation influence, compensate the gift apology and spirit indemnity etc. .Because of the special that corpse have, violate for it, behavior the person should undertake to stop violate, returning to the corpse, recover the original shape and injures to lose the compensatory civil case responsibility with supplementary property towards victimizing the person with the spirit. At this part, the writer emphasizes to discuss to violate the corpse to cause victimize the person the spirit to injure and compensate the problem. Thinking to give to victimize appropriate spirit indemnity of person is necessary, for comfort to victimize the person, sanctions to add to harm the person to have the certain meaning. At certain concrete indemnification quantity, the result, infringement person whom method and means, the infringement behaviors...