論飼主就寵物遭不法侵害之慰撫金賠償問題──以我國與德國之發展趨勢為中心

Discussion on the Issue of Damages for Pain and Suffering Associated with Pet Being Illegally Harmed: With a Focus on Development Trends in Taiwan and in Germany

隨著社會觀念遞嬗與人際互動模式的改變，現代人將寵物視如家庭成員的情形，可謂相當普遍。在此背景下，倘若寵物遭他人不法侵害致傷、甚至致死，對飼主帶來之傷痛自是難以輕易撫平，從而其中不乏有欲請求慰撫金者。按我國現行民法之體系架構來看，上揭請求是否可認合理，涉及了動物本身在法律上之定位、我國學說和實務就肯認慰撫金與否所持之論據脈絡等問題，而本文將嘗試一一對此進行梳理，並提出反思。又，為求拓展討論之廣度，本文除以我國近年來之相關實務裁判為觀察對象外，亦將適時引介如：德國民法第90a條之修正歷程、德國實務裁判對飼主請求慰撫金之立場及根據等。冀能略有助於回應此一在現代社會中，可能會越發常見的民事糾紛類型。

As social views and mode of personal interaction change, it is common for people nowadays to view pets as a family member. Under this background, if a pet is illegally harmed resulting in injury or even death, the pain caused to the pet owner is difficult to ameliorate, and it is not uncommon for many pet owners to seek monetary compensation. According to the current civil law system structure in Taiwan, the justification for the above request is related to the legal position of animals, our country’s academic and practical arguments on whether to grant monetary compensation in such cases, and other such issues. The present article examines these issues one by one, and proposes examinations. Moreover, to expand the breadth of discussion, in addition to observing related decisions in our country’s practice in recent years, the present article also relevantly makes introductions to discussions such as: the amendment process of German Civil Law Article 90a, German decisions in practice on positions and basis of pet owners seeking monetary compensation, etc. This can assist in responding to such types of civil disputes, which can become more common in current societies.