The Research On The Issues Of Nervous Shock

In recent years,the nervours shock of the secondary victim have gradually entered the judicial and theoretical field of view,causing discussion.Strictly speaking,the nervours shock of the secondary victim is a non-legal concept,which is derived from the "Nervours Shock" in the Anglo-American legal system.It refers to the shock,abortion or mental illness of the third party who is outside the danger range of the harm behavior when the injury accident occurs.Different from the traditional infringement of the right to health which acts on the flesh or physiological organs of the natural person,it is mainly characterized by its action on the nerve tissue of the human body.Article 1004 of the Civil Code stipulates that the physical and mental health of natural persons is protected by law.For the nervours shock of the secondary victim,on the one hand,its unique damage consequences lead to the theoretical existence of the spiritual damage compensation or the right of health compensation claim basis dispute;On the other hand,the particularity of the attack means leads to the uncertainty of the damage subject and damage scope.How to reasonably limit the scope of liability of the actor,balance the protection of the rights and interests of the third party and the freedom of the actor has become the focus of the establishment of the recognition of tort liability.Considering the Anglo-American law system and continental law system countries for dealing with such cases have more achievements in the judicial practice,by setting up special elements formed a relatively mature responsibility identification mechanism,rules of judicial practice of systematic has played a positive role,therefore this article to shock damage to a third person for judicial relief as the research focus,the main contents are as follows:The first part of this article based on the relevant provisions of the civil code,from the aspects of concept,nature,characteristics of the the nervours shock of the secondary victim to an overview of the "shock damage" refers to the damage to the third person form the right to health,including miscarriages,fainting body representation of physical and health damage and is limited to the spirit of people suffering from mental illness and health damage,The scope of secondary victim refers to the narrow sense of the secondary victim,that is,outside the danger range of the harmful behavior,unfortunately affected people.The second part is the argumentation of the scope of the subject enjoying the right of claim,which is divided into the justification basic argumentation of the scope of the subject limiting compensability and the limitation standard adopted.Among them,the basis of legitimacy includes "reasonable foresight" and "policy consideration",while the limitation standard includes "near relative standard" and "close affective relationship standard".Considering the current legal system of our country,the latter should prevail in order to adapt to the social status quo and facilitate the application of judicial practice.The third part is the demonstration of the constitutive elements of liability for damages,taking the restrictive path as the attitude.According to the four requirements of tort liability in China,the harm in such cases should be "sudden" and "urgent",and in principle it should be defined as an illegal act that infringes the right to life,body and health of the direct victim.The consequences should be "serious" and "persistent",and should reach the extent that the third party’s right to health is damaged.As for the determination of causality,because the theoretical standards currently applicable in our country are not enough to reasonably limit the liability of the offender,we propose the auxiliary determination of "tight time and space" and "tight perception" which can be used for reference in British judicial practice.The fourth part is about the current situation of shock damage relief for the third party in our country.By summarizing the relevant cases,this paper points out that in the judicial judgment of this kind of damage in China,it is applicable to the defects of referring to the spiritual damage compensation and fair liability of the close relatives of the deceased,and there is a big difference in the identification of causality.The fifth part is the suggestion to perfect the third party shock damage relief in our country.In combination with the current legal system of China,the author proposes that it should be remedied under the damage of the right to health,and relevant legal provisions should be applied.In addition,the author proposes that two elements of "the tightness of time and space" and "the tightness of perception" should be considered in the determination of causality.