| The cases of the third party’s nervous shock has often occurred in the trial practices,but whether the legal academical circles or the trial practices do not have an accordant and clear standpoint towards the legal characters and liability determination of such damages.The main target of this study is to clarify the legal characters of the third party’s nervous shock and to construct the tort liability elements of such damages for the purpose of the realization of the balance between the liability restriction and right relief.This thesis is divided into four parts.The first part hereof is to clarify the concept of the “third party’s nervous shock”,indicating the meaning of the “nervous shock” and “third party”;based on the trial practices,the second part is the reveal the status quo and tricky problems as to the judgement of the cases of the third party’s nervous shock,including the divergence of the claim basis,the vagueness of the tort liability elements of such damages and the controversy of the applicable basis of judgement;based on the tort law theories,the third part is to thoroughly analyze the legal characters of the third party’s nervous shock as a direct damage,a damage to the right of health,which is different with the mental damage of the deceased’s close relatives,and is to analyze the tort liability elements of such damages including the damage result,the casual relationship between the tortious behavior and the damage result,and the behavior’s fault,for the purpose of the realization of the balance between the liability restriction and right relief;based on the foregoing analyses,the forth part is to put forward the suggestions for the judgement of the cases of the third party’s nervous shock,which we shall resolve the issue of the third party’s nervous shock under the current legal framework of of the damage to the right of health and identify the tort liability strictly in accordance with the principle of tort liability elements. |
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