二手菸害之侵權行為損害賠償

The Compensation of a Tort in Second-Hand Smoke Damages

對於二手菸之防制，我國有「菸害防制法」可資適用，但對於二手菸害之民事上侵權行為損害賠償，「菸害防制法」並未明文規定，且因「菸害防制法」為管制性法歸而性屬公法，故二手菸害之民事上侵權行為損害賠償仍應依民法侵權行為之規定定之。本文乃就二手菸害之侵權行為損害賠償加以分析，特別是其請求權基礎。

Second-hand smoke has been known to cause cancer and other serious illnesses in non-smokers. What legal bases are available if one have been injured by second-hand smoke? Article 184 of Civil Code regulates a Tort in Second-hand Smoke Damages, which prescribes “A person who, intentionally or negligently, has wrongfully damaged the rights of another is bound to compensate him for any injury arising therefrom. The same rule shall be applied when the injury is done intentionally in a manner against the rules of morals. A person, who violates a statutory provision enacted for the protection of others and therefore prejudice to others, is bound to compensate for the injury, except no negligence in his act can be proved.” This paper analyzes the compensation of a tort in second-hand smoke damages under Civil Law.