生命作为损害:生存的非金钱损害赔偿(宪法视角下的民法解释)

K. Kravchenko, B. Schloer
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引用次数: 0

摘要

本文介绍了德国联邦法院关于生命是否可以被视为有权要求非金钱和金钱损害赔偿的损害问题的一项决定。该问题涉及一个人的情况,他的健康状况不允许进行任何通信;这个人是通过医疗来维持生命的,即使这个人患有许多疾病,而且很明显,这种治疗只会把死者转移到前方。法院参考了宪法,处理了在民法中生命是否可以被视为损害的问题。将介绍该决定和背景,以及前两项决定和根据德国和乌克兰法律对法律问题的比较说明。该条的目的是提出德国联邦法院的一项决定,该法院指出,这项决定处理的是一个前所未有的问题。由于作为法院判决背景的情况没有国家限制,因此值得向德国以外的专业公众提出这一专题。本文采用宪法法和民法法的比较分析方法。法院的判决和比较法律背景的介绍在逻辑上只是供进一步讨论的资料的结果。然而,比较呈现显示了宪法中权利和自由功能层面上的相似之处:它们具有保护个人免受国家干预的功能。但是,权利和自由也在宪法层面上创造了一套价值体系,必须在国内法的所有领域中加以考虑- -也包括在由民法管辖的私人关系中加以考虑。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
LIFE AS DAMAGE: COMPENSATION OF NON-PECUNIARY DAMAGE FOR STAYING ALIVE (THE INTERPRETATION OF CIVIL LAW IN THE LIGHT OF THE CONSTITUTION)
This article presents a decision of the German Federal Court of Justice dealing with the question, whether life can be considered as damage which entitles to claim compensation of non-pecuniary and pecuniary damage. The question concerns the case of a person, whose state of health does not permit any communication; this person was kept alive by medical treatment, even if the person suffered from many diseases and it was evident, that the treatment will only shift the dead ahead. The court referred to the Constitution, dealing with the question, whether life can be considered in civil law as a damage. The decision and the background will be presented as well as the two previous decisions and a comparative description of the legal questions according German and Ukrainian Law. The purpose of article is to present a decision of the German Federal Court of Justice, which – as the Court states – deals with an unprecedented issue. Due to the fact, that situations, which were the background of the Court’s decision have no national limits, it is worthto present this topic also for a professional public outside Germany. The article is based on a method of comparative analysis of constitutional and civil law.The presentation of a Court’s decision and the comparative legal background has logically only the result of information for further discussion. However, the comparative presentation shows parallels on the level of the functions of rights and freedoms in a Constitution: they have the function to protect the individual against the interference of the state. But the rights and freedoms also create a system of values on the level of constitutional law which has to be considered in all spheres of national law – also in relations between private persons ruled by civil law.
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