精神損害賠償繼承的限制與轉向

Limitation and Diversion of Inheritance of Mental Damage Compensation

《民法典》生效之前的司法實踐和理論對精神損害賠償請求權的讓與和繼承作了限制性解釋。從限制論的內容及淵源來看，該理論主要借鑒了德國法的規定，這一限制性規定主要是基於人格權的高度專屬性以及撫慰金的撫慰功能。但是隨著社會發展，德國、瑞士、日本等國在司法實踐中都擯棄了嚴格的限制論。精神損害賠償請求權為純金錢債權，並不存在所謂的人身專屬性。此外，限制論會帶來被侵權人“與時間賽跑”、權利體系混亂、遺產繼承人權利減損等問題。基於此，應突破我國既往裁判和理論中的限制解釋，不應對《民法典》第1122條進行限縮解釋。

Article 1122 of the Civil Code of our country stipulates that the inheritance which cannot be inherited according to the provisions of law or according to the nature shall not be inherited, but the transfer and inheritance of the right to claim compensation for mental damage are not clearly stipulated. The judicial practice and theory before the entry into force of the Civil Code gave a restrictive interpretation of the transfer and inheritance of the right to claim compensation for mental damage, which is embodied in the Article 18, paragraph 2, of the 2003 Interpretation of Personal Damage Compensation: In principle, the right to claim compensation for mental damage shall not be transferred or inherited, except in the cases in which the indemnity obligor has promised in writing to pay monetary compensation, or the indemnity right holder has filed a lawsuit with the people's court. This article mainly draws on the provisions of the original article 847 of the German Civil Code, and the restrictive provisions in this article are mainly based on the strong personal exclusivity of the personality right and the consolation offered by the comfort money. However, from the perspective of comparative law, Germany, Switzerland, Japan and other countries have gradually abandoned the strict restriction theory in judicial practice. The revised Interpretation of Personal Damage Compensation in 2020 has deleted the content of paragraph 2 of the original article 18, which leaves room for reinterpretation of the inheritance of the right to claim compensation for moral damage. However, from the perspective of our judicial practice, the court still restricts the infringed's right to claim for spiritual damage according to the previous judicial interpretation, and only recognizes the infringed's heir's right to claim for spiritual damage, which is extremely disadvantageous to the protection of the infringed's rights, mainly for the following reasons: Firstly, the right to claim compensation for mental damage is a pure monetary claim, and there is no so-called personal exclusivity, so it needs to be distinguished from the exclusivity of personality right, which does not lead to the exclusivity of the right to claim compensation for mental damage. Secondly, the limitation theory will bring the infringed "race against time" problem, for the infringed who is seriously injured, if they want to protect their own interests, they must file a lawsuit in the people's court before their death. Compared with those who suffered less physical injury, those who suffered more physical injury had difficulty in realizing their rights and interests. Thirdly, the limitation theory leads to the confusion of the right system, which mainly involves the loss of right caused by the unclear identification of the right of compensation for mental damage, and then causes the problem of the loss of the right of the inheritor. Fourth, from the perspective of the function of compensation for mental damage, the compensation for mental damage not only has the function of soothing the infringed, but also has the function of compensation, relief, punishment, prevention, etc. It should not be considered that the function of mental damage compensation cannot be realized because the comfort function cannot be realized after the death of the infringed. Based on this, we should break through the restrictive interpretation in the existing judgment and theory in our country, and should recognize that the right of compensation for mental damage is not a heritage that cannot be inherited according to its nature, but that the right of compensation for mental damage is inheritable. According to Article 1122 of the Civil Code, it should not be found that the right to claim compensation for moral damage is not inheritable because of its nature.